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PUBLIC LIBRARY 

FORT WAYNE &. ALLEN CO., IND. 




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ALLEN COUNTY PUBLIC LIBRARY 



3 1833 01742 1170 



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73.006 
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JOHNS HOPKINS UNIVERSITY STUDIES 

IN 

Historical and Political Science 

HERBERT B. ADAMS, Editor 



History is past Politics and Politics are present History — Freeman 



VOLUME XIII 



.-.(." 



SOUTH CAROLINA, MARYLAND, AND 
VIRGINIA 



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T*' 



i 

■S 



,■1 

BALTIMOEE \ 



The Johns Hopkins Press 

18 95 



COPYRI&HT, 1895, BY THE JOHNS HOPKINS PRESS. 



JOHN MURPHY & CO, PRINTERS, 
BALTIMORE. 



X' 7108-11 



TABLE OF CONTENTS. 



PAGE. 

I-II. Government of the Colony of South Carolina. By Edson 

L. Whitney, 9 

III-IV. The Early Relations between Maryland and Virginia. By 

John H. Latan^, . 129 

V. The Rise and Development of the Bicameral System in 

America. By Thomas Francis Moran, . . .211 

VI-VII. White Servitude in the Colony of Virginia. By James 

Curtis Ballagh, 265 

VIII. The Genesis of California's First Constitution (1846-49). 

By Rockwell Dennis Hunt, . . . . . .367 

IX. Benjamin Franklin as an Economist. By W. A. Wetzel, 425 

X. The Provisional Government of Maryland (1774-1777). 

By John Archer Silver, 481 

XI-XII. Government and Religion of the Virginia Indians. By 

S. R. Hendren, . 543 



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MI 



GOYIMMMT OF THE COLONY OF 
SOUTH CAROLIM 



JOHNS HOPKINS UNIVERSITY STUDIES 



IN 



Historical and Political Science 

HERBERT B. ADAMS, Editor 



History is Past Politics and Politics are Present History.— Freeman 



THIRTEENTH SERIES 
I-II 



GOYEMMEIT OF THE COLOIY OF 
SOUTH CAHOLIIA 



By Edson L. Whitney, ph. d., ll. b. 

Professor of History, Benzonia, Mich. 



baltimore 
The Johns Hopkins Press 

PUBLISHED MONTHLY 

January-February, 1895 



Copyright, 1895, by The Johns Hopkins Pbess. 



THE FEIKOENWALD CO., PKINTEKS. 
BALTIMOEE. 



CONTENTS. 

Preface 7 

I. The Sources of South Carolina Colonial History. 

(a) Laws 9 

(&) Records 13 

(c) Documents in England 13 

(d) Newspapers and Pamphlets 15 

(e) Secondary Authorities 16 

;; II. Colonial Dependence. 

(a) Title to the Colonies 18 

(&) Colonial Grants 23 

(c) Proprietary Control of South Carolina 24 

(d) Royal Control ;— Board of Trade 30 

III. Governor and Council. 

(a) Governor , 37 

(b) Council 43 

(c) Secretary 45 

{d) Treasurer 45 

IV. The Assembly. 

(a) Composition 47 

(b) Sessions and Procedure 50 

(c) Restrictions 53 

V. The Land System. 

(a) The Country 56 

(&) Settlements 58 

(c) Townships 60 

(d) Towns 63 

(e) Land Grants 65 

(/) Quit-rents 66 

. VI. The Parish. 

(a) Organization 69 

(&) Officers 70 

(c) Election Unit 73 

(d) Naturalization 75 

(e) Incorporated Towns 76 



6 Contents. [6 

VII. The Judiciary. 

(a) Courts of Common Law 77 

(1) Civil 78 

(2) Criminal 79 

(3) Appellate 82 

(4) Precinct and Circuit 83 

(6) Coroner's Courts 84 

(c) Court of the Ordinary 85 

{d) Court of Chancery 85 

(e) Courts of Admiralty 86 

VIII. The Militia. 

(a) Militia proper 91 

(b) Patrol 94 

(c) Charleston Watch ; . . . 95 

IX. Taxation. 

(a) Direct Tax 97 

(6) Duties 100 

(c) Licenses 104 

id) Local Taxes 106 

X. The Currency 110 

Appendix I. Population of South Carolina 115 

II. Governors of South Carolina 120 



PREFACE. 

The following monograph aims to give a description of 
the government of South Carolina during the colonial period, 
from the constitutional standpoint. As the current course 
of events had been fairly well related by several interesting 
writers, it seemed best to omit all mention of political his- 
tory except where necessary to explain constitutional 
changes. It is hoped that the topical method adopted will 
give a clearer idea of the constitutional changes than would 
a chronological account. The foot-notes have been made 
perhaps more numerous than was necessary, but the object 
in so doing was to show the reader where to turn for a fuller 
investigation of the subject treated, rather than to furnish 
authorities for statements in the text. 

E. L. W. 



CHAPTER I. 
The Sources of South Carolina Colonial History. 

The sources of the colonial history of South Carolina con- 
sist of 'the laws and records of South Carolina, the docu- 
ments in the State Paper. Office in London, and newspaper 
articles, pamphlets and books written during the colonial 
period, either by residents of or visitors to the colony. The 
condition of these sources at the present time is very unsat- 
isfactory. Many of the statutes are lost, especially those 
passed during the proprietary period, where the omissions 
are so many as to render a correct description of the earlier 
years of the colony practically impossible. Eleven statutes 
are known to have been passed by the Assembly before the 
year 1682, but their titles as well as their provisions are lost. 
Of the twenty-one acts passed between the years 1682 and 
1685, the titles alone are preserved, while of those passed 
between 1685 and 1700 more than one-third cannot now be 
found. The acts passed subsequently to the opening of the 
eighteenth century are in a better state of preservation. 

The first collection of the statutes of South Carolina was 
made by Chief Justice Trott shortly after his arrival in the 
colony in 1698, and was printed at Charleston in 1736.^ The 
first volume contains such acts passed prior to 1728 as were 
still in force at the time of publication, with the titles of all 
expired or repealed acts, except those passed prior to 1682, 
which Trott considered of too little importance even to men- 
tion.^ The second volume included such acts passed be- 

^ See " Statutes at Large of South Carolina," II., 602; III., 191, 
393, 447, 512, 540. 

=^ Trott's " Laws of Soutti Carolina," pp. xi.-xiv. In 1721, Trott 
had published at London a volume entitled " Laws of the British 
Plantations in America, relating to the Clergy, Religion and Learn- 
ing," which has no connection with the one above mentioned. 



10 Government of the Colony of South Carolina, [10 

tween the years 1728 and 1736 as were still in force, the 
charter of 1665, the Fundamental Constitutions and the so- 
called Temporary Laws of the Proprietors. The second 
compilation was published by Judge Grimke in 1793, imme- 
diately after the refusal of the Assembly to accept the report 
of the commission appointed in 1785 to digest and codify 
the laws of the State/ It is on the same general plan as 
Trott's volume, containing such acts as were deemed by the 
compiler to be in force at the time of publication, with the 
titles of acts expired or repealed. In 1804 a continuation 
containing the acts passed between the years 1791 and 1804 
was published by Faust. The next collection was issued 
by Judge Brevard in three volumes in 1814, in the form of 
an alphabetical digest of lall statutes deemed by him to be in 
force in South Carolina, whether passed by the South Caro- 
lina Assembly, the British Parliament or the United States 
Congress. The next and last collection was made by au- 
thority of the Assembly of South Carolina, and was printed 
in ten quarto volumes, 1 836-1 841, under the title of Statutes 
at Large of South Carolina^ arranged as follows : Volume I., 
charters and all constitutional acts; volumes 11. to VI., all 
acts not otherwise classified; volume VII., acts relating to 
Charleston, courts, slaves and rivers; volume VIII., corpor- 
ation acts and the militia acts passed after 1793; volume IX., 
acts relating to roads, bridges and ferries, and the militia 
acts passed prior to 1793; volume X., an index and a chro- 
nological list of all acts of the Assembly. The edition is not 
as accurate as might be wished, and the attempt at classifica- 
tion failed to accomplish the results intended, on account of 
the large number of omnibus bills passed by the Assembly 
and the neglect of the compilers to insert cross-references. 
This edition also suffers in having been prepared by two 
commissioners not entirely in sympathy with each other.'' 

^ See " Statutes at Large," IV., 659. This volume was cited by 
tiie writers prior to the middle of the present century generally 
as " Public Laws," or simply *' P. L." 

^ Volumes I. to VI. were edited by Thomas Cooper, and volumes 
VII. to X. by David J. McCord. 



11] Sources of South Carolina History, 11 

Furthermore, the omissions are many and frequent; in some 
cases no reason is assigned for the omission, while in others 
the statement is simply made that the omitted acts contain 
nothing of importance, or that they are too illegible to be 
read; especially is this true of the tax acts passed after 1740, 
and the earlier acts relating to Charleston, the roads, bridges 
and the militia. All private acts are also omitted, although 
enumerated in the appendix to the tenth volume. The sixth 
and ninth volumes contain appendices giving in full several 
acts stated in earlier volumes to be lost. The general index 
in the tenth volume, as well as the several indices, at the end 
of each preceding volume, are very meagre and unreliable. 
In fine, marks of haste and inattention are apparent through- 
out the entire work. The acts of the Assembly passed since 
the appearance of the Statutes at Large have been gathered 
into volumes under the same title and are considered as a 
continuation of the preceding ten volumes. The acts of the 
Assembly were numbered consecutively from 1682 to 1866, 
since which time they have been numbered consecutively by 
volumes, the acts passed in three or four successive years 
being grouped into one volume. Since the numbers on the 
original acts do not agree with those given by Trott, 
Grimke or Cooper, it becomes necessary in citing an act 
either to give the name of the collection referred to, with 
the number of the act, or to give the volume and page 
of the collection in which it is printed. The latter is the 
custom usually followed, although some trouble is experi- 
enced in referring to volumes 14 and 15 of the Statutes at 
Large, owing to the fact that they have been reprinted and 
the pages of the reprinted edition do not coincide with the 
pages of the original. In 1838, after six volumes of the 
Statutes at Large had appeared, William Rice issued a Di- 
gested Index of the Statute Law of South Carolina. The 
part covering the years 1790 to 1836 was very carefully pre- 
pared by the compiler; but the part covering the period 
prior to 1790 was taken bodily from Grimke's index, and is 
therefore not as accurate or as full as could be desired. 



12 Government of the Colony of South Carolina, [12 

The journals of the colonial Council and Assembly, as 
well as the records of the parishes, are likewise in a very 
unsatisfactory condition. None of them have ever been 
printed, except in (extracts, and many of the original manu- 
script volumes have been lost or destroyed. Since 1849, 
the colonial records have been arranged and indexed and 
deposited in the office of the Secretary of State at Columbia. 
The journals of the Council to 1786 have been bound in 
forty volumes, averaging about three hundred and fifty 
pages each. The first volume includes the records from 
1 67 1 to 1720; it is very fragmentary, and most of it was 
copied from an old Book of Records in the Ordinary's 
office at Charleston. The original was without arrange- 
ment or connection. The latter part of the volume was 
copied from loose sheets of the Council journals found in 
the Secretary of Staters office in Charleston. There are 
omissions from 1672 to 1674. There are records of three 
meetings in 1674 and of one each in 1675, 1680 and 1681. 
In succeeding volumes there are many breaks between 1723 
and 1742. There are no records for the years 1760-63, 1775- 
82 and 1785. The journals of the Commons House were 
similarly bound in forty volumes, containing the records 
from 1692 to 1776. Six of these volumes have since been 
lost: vols. II, 15, 20, 36, 37 and 38, including the years 1737- 
39, 1 741, 1745, 1762-69. There are omissions between the 
years 1694 and 171 3, and no records are found of meetings 
between September, 1727, and February, 1733, and of a few 
meetings held in later years."^ 

It it to be greatly regretted that the earlier statutes and 
records of the colony are in such a wretched condition. 
Much help, however, is to be obtained from the documents 
in the State Paper Office in London.'' Theoretically, this 

* See the " Report of the Committee of the South Carolina His- 
itorical Society in the matter of Procuring Transcripts of the 
Colonial Records of this State from the London Record Office." 

2 This office was created by the PubUc Records Act, 1 and 2 
Vict., c. 94, passed August 14, 1838. In it are deposited all the 
records and documents not needed for current use, which are 
placed under the care of the Master of the Rolls. The documents 
of the Board of Trade were deposited in this office in 1842. 



13] Sources of South Carolina History. 13 

office contains copies of all statutes passed or records made 
in or concerning the colonies; but the negligence of the 
proper officials to procure these copies, or to take proper 
care of such as were obtained, is evident even from a very 
superficial inspection. A systematic publication of abstracts 
of these documents was begun in 1856, under the title of 
Calendars of State Papers.^ Thus far but nine volumes of 
the Calendars of Colonial Papers, which are edited by W. 
Noel Sainsbury, have been published," and as the last vol- 
ume concludes with the year 1676, the amount of informa- 
tion to be obtained from them relative to South Carolina is 
comparatively small, although valuable. The Historical 
Society of South Carolina, during the three years following 
its organization in 1855, issued three volumes of Collections, 
containing, in addition to addresses and short articles, ab- 
stracts of the earlier documents in the State Paper Office 
relating to South Carolina. These abstracts are much 
briefer than those published in the Calendars, but their value 
can hardly be overestimated. The war put an end to the 
activity of the Society. After the reconstruction period the 
Society was reorganized, but lack of funds prevented the 
continuation of the earlier publications. The later publica- 
tions of the Society consist mainly of speeches and reports 
of committees, the most valuable of which have been bound 
as part one of the fourth volume. Through the efforts of 
the Society, the Legislature of South Carolina in 1891 ap- 
pointed the " Public Record Commission of the State of 
South Carolina," consisting of the Secretary of State and 
four others, to obtain from the public archives of England 
transcripts of such documents relating to the history of South 
Carolina as are necessary or important, and to have them 

^ " Calendars " is interpreted to mean " chronological cata- 
logues." They are published under several heads: Venetian, Span- 
ish, Henry Vin., Domestic, Foreign, Treasury, Scotland, Ireland, 
Carew, Colonial, &c. 

^ Five of the nine relate to the East Indies entirely. The " Cal- 
endars of Domestic Papers " also contain a few documents relat- 
ing to South Carolina. 



14 Government of the Colony of South Carolina. [14 

copied and deposited with the Secretary of fetate.^ It is the 
intention to publish these documents in a manner similar to 
that already adopted by New York, New Jersey and North 
Carolina. The Colonial Records of North Carolina^ so 
ably edited by Col. Saunders, contain many documents, 
especially in the first two volumes, which throw much light 
upon South Carolina history and institutions. Occasional 
general helps are to be obtained from the Documents Rela- 
tive to the Colonial History of the State of New York, edited 
by E. B. O'Callaghan, and the Documents Relating to the 
Colonial History of the State of New Jersey, edited by 
William A. Whitehead. 

Extracts from the laws and records of South Carolina are 
to be found in several places. The Fundamental Constitu- 
tions and the two Carolina charters are to be found in 
Poore's Charters and Constitutions. Rivers' Sketch of the 
History of South Carolina and his supplementary Chapter 
each contain appendices giving in full many of the instruc- 
tions to the early governors, reports, laws, etc. Extracts of 
other laws of more or less importance are to be found in 
Dillon's Oddities of Colonial Legislation, Goodell's Ameri- 
can Slave Code, Niles' Principles and Acts, Williams' Negro 
Race in America, Report of Board of Agriculture of South 
Carolina, the Charleston Year Books, and the Reports of 
the Royal Commission on Historical Manuscripts. This 
commission was established by the Queen, April 2, 1869, to 
report upon semi-public and family archives. Thus far 
thirteen reports in thirty-six volumes have been issued, 
enumerating papers in the possession of private institutions 
and families and giving abstracts of the more important. The 
papers relating to South Carolina are few and are contained 
principally in the second, fourth, fifth and eleventh reports, 
the most important being contained in the Shelburne manu- 
scripts in the fifth report and the Townshend manuscripts 
in the, fourth part of the eleventh report. The manuscripts 

^ " Statutes at Large of South OaroUna," XX., 1059. 



15] Sources of South Carolina History. 15 

relating to trade, and referring to the relations existing be- 
tween the colonies and England, are many, but very few are 
given beyond their titles. 

Of newspapers and pamphlets relating to South Carolina 
issued during the colonial period, very little need be said. 
There were three papers published in the colony previous to 
1776.^ In them are to be found unofficial records of the 
Assembly and essays upon the questions of the day, many of 
which were reprinted, with other letters, in papers published 
in other colonies or in Great Britain."" The pamphlets issued 
about the colony were many, and were mainly published for 
the purpose of fostering emigration to the colony.^ The 
more valuable have been reprinted in Carroll's Historical 
Collections of South Carolina, Force's Historical Tracts, 
French's Collections of Louisiana, Weston's Documents 
Relating to South Carolina, and the Charleston Year Books, 
annual publications of the Charleston Council since 1880. 

The secondary authorities are in general very poor. Sev- 
eral sketches or descriptions of South Carolina were pub- 
lished during the colonial period, but none of them merit 
the name of histories. The first history was written in 1779 
by Rev. Alexander Hewatt, and was published in London. 
Hew^att was a native of Scotland, and had been pastor of the 
Presbyterian church in Charleston for several years previous 
to the Revolution, during which time he had obtained much 
information in regard to the colony. The history of the 
later period covered by his book is fairly correct; but Hie 
history of the earlier period shows but a slight acquaintance 
with the subject. The next history was written by David 
Ramsay, South Carolina's most noted historian, and was 

^ " The South Carolina Gazette," 1731 to 1800, with some inter- 
missions; "The South Carolina and American G-eneral Gazette." 
1758 to 1780; "The South Carolina Gazette and Country Jour- 
nal," 1765 to 1775; all weeklies and published at Charleston. 

"^ Especially in the " London Magazine " and the " Gentleman's 
Magazine." 

* Several were pubhshed in Germany and in Switzerland in 1711 
and 1728 to 1735. 



16 Government of the Colony of South Carolina. [16 

published in 1808/ It is interesting, but follows Hewatt too 
closely to be considered absolutely accurate. In 1826 
Robert Mills published his Statistics of South Carolina, a 
book filled with small facts gleaned from many sources and 
told in an interesting manner. The book can hardly be 
termed a history, however. In 1840 the novelist, William 
Gilmore Simms, issued a history of South Carolina which 
practically closed with the year 1783. It contains the gen- 
erally accepted account of South Carolina history, but gives 
no evidence of independent research.^ In 1856 William 
James Rivers, now president of Washington College, Mary- 
land, issued his Sketch of the History of South Carolina, 
with an appendix containing a large number of rare and val- 
uable documents. The volume, which closes with the Revo- 
lution of 1 71 9, is reliable in every respect, and is the only 
carefully written sketch of the early history of South Caro- 
lina that has thus far been published. Rivers in 1874 pub- 
lished a Chapter in the Early History of South Carolina, 
relating to the Revolution of 171 9, with an appendix of 
documents, and also wrote the chapter on the Carolinas in 
the fifth volume of the Narrative and Critical History of 
America, edited by Justin Winsor. In 1883 the South Caro- 
lina Board of Agriculture issued a Report, which consists of 
a carefully written description of the State, with statistics, 
and several short articles written by specialists in their par- 
ticular subjects.'' 

There have also been published several well written ac- 
counts of various phases of South Carolina history: Gregg's 
Old Cher aw s, Logan's History of the Upper Country, 
O'Neall's Annals of Newberry, Reminiscences by Cardozo, 
Fraser and Johnson, Memoirs by Drayton and Moultrie, 
accounts of the Lutheran Church in South Carolina by 

^ Ramsay's " History of the Revolution in South Carolina " also 
contains many references to the colony. 

^A second and enlarged edition appeared in 1860. Many of 
Simms' other writings refer to South Carolina colonial history. 

' School histories have been written by Davidson and by Weber. 



17] Sources of South Carolina History, 17 

Bernheim, the Episcopal Church by Dalcho, the Baptist 
Church by Furman, and the Presbyterian Church by Howe, 
and sketches of the Charleston churches in the Charleston 
Year Books. The general church histories of the various 
denominations also give good and fairly accurate accounts 
of the religious sects in the colony. An account of educa- 
tion in colonial South Carolina has been written by Edward 
McCrady, Jr., entitled Education in South Carolina Prior to 
and During the Revolution. Brief accounts also appear in 
B. J. Ramage's Local Government and Free Schools in 
South Carolina, and in Colyer Meriwether's History of 
Higher Education in South Carolina. Nothing has as yet 
been printed relative to slavery in colonial South Carolina. 
In fact, there seems to be no original material upon this 
subject aside from the Statutes at Large. 

Documents referring to the colony of South Carolina 
indirectly are to be found in ^h^ Journals of the House of 
Commons and the Journals of the House of Lords. The 
statutes of Great Britain have been reprinted several times. 
The most complete edition is known as the Statutes of the 
Realm, which closes with the accession of Queen Anne. 
Editions of the Statutes at Large of Great Britain were 
printed in 1763 and in 1783, but both omit several acts 
relating to the colonies. Both also omit the acts of the 
Commonwealth Parliaments, which may be found, however, 
in Scobell's Acts and Ordinances. Other books bearing 
indirectly upon the history of South Carolina are: Stokes' 
View of the Constitution of the British Colonies in 1776, 
which contains specimens of instructions and commissions 
of Governors, PownalPs Administration of the Colonies, and 
the three books by Chalmers, — Opinions of Eminent Law- 
yers, Revolt of the Colonies, and Political Annals of the 
Colonies. They are a mine of information, but are not 
safe to follow blindly. 



CHAPTER 11. 
Colonial Dependence. 

The era of discovery, which began in the latter part of the 
fifteenth century, brought with it the pecuUar doctrine of 
title by discovery; that is to say, newly discovered territory, 
not under the dominion of any Christian or Mohammedan 
prince, became the property of the sovereign under whose 
flag the discoverer sailed. The Pope, it is true, granted 
away these newly discovered territories by right of the so- 
called Donation of Constantine, but the claim of the various 
European countries to the soil of North America rested 
mainly upon discovery and subsequent settlement.^ The 
most extraordinary part of this doctrine was that the newly 
discovered country belonged to the sovereign personally 
and not to the nation as a whole; hence the British Parlia- 
ment had no right to pass any bill relating to the portion of 
North America claimed by the English Crown.^ It should 
be noticed, however, that this conception of the King's 
power was not fully concurred in by Parliament, as is shown, 
by the fact that on three several occasions bills were passed 
by both Houses relating to the American colonies, in spite 
of the protest of the Secretary of State that Parliament by 
so doing was trespassing upon the royal prerogative. These 
bills were passed in the years 1621, 1626 and 1628, but 

^ Story, "On the Constitution," c. 1, §2; Donaldson, "Public 
Domain," p. 1; Johnson et al. v. M'Intosh, 8 Wheaton's Reports, 
573, 

^ None of the navigation acts passed prior to 1640 extended to 
the colonies. See 1 Eliz., c. 13; 5 EHz., c. 5, §§8, 11; 13 Ehz., 
c. 11; 35 Eliz., c. 7, §§8, 11; 39 Eliz., c. 18, §8; 43 Eliz., c. 9, §6; 
1 Jac. I., c. 25, §6; 21 Jac. L, c. 28, §1; 3 Car. I., c. 4, §10; 16 
Oar. I., c. 4. 



19] Colonial Dependence. 19 

failed to receive the royal assent/ and the King continued to 
administer the affairs of the colonies independently of Par- 
liament.'' As there were no sessions of Parliament between 
the years 1629 and 1639, the question did not again arise 
until the outbreak of the Civil War.^ 

When Parliament took the executive power away from 
Charles I., it assumed the responsibility of managing the 
colonies, and then for the first time really legislated for 
them. Several ordinances were passed in line with the 
policy pursued by the former royal government, designed to 
confine the colonial trade to Great Britain and in British 
ships/ Hence, at the Restoration trouble arose, for ParHa- 
ment refused to surrender its right to legislate over the colo- 
nies, and the King refused to recognize this right claimed 
by Parliament. A compromise was, however, effected by 
which Charles II. allowed Parliament to legislate for the 
colonies, but retained to himself the sole power of adminis- 
tration. There is no documentary evidence of such an 
agreement, but the fact that such a division of powers was 
made under such circumstances leads one to believe that a 
compromise was effected. Had an open agreement been 
made in regard to this matter, and the legal relation of the 
colonies agreed upon and distinctly understood in Eng- 
land and America, it is possible, if not highly probable, that 

^ See " Journals of the House of Commons," I., 578, 591, 626, 654, 
819,. 825, 830, 831, 863, 874, 884, 886, 898. They are reprinted in 
Knox's ** Controversy between Great Britain and Her Colonies 
Reviewed," Appendix, 81-87. " Statutes of the Realm," IV., 1208. 

== See Sainsbury's " Calendars," I., 26, 84, 239, 251. For a proc- 
lamation setting forth the King's view of the question in 1625, see 
Sainsbury's " Calendars," I., 73. 

^ See further Forsyth's " Cases and Opinions on Constitutional 
Law," 20; Pownali's " Administration of the Colonies " (5th edit), 
I., 49, 50, 142; Chalmers' "Revolt of the Colonies," I., 29, 67; 
" Annual Register," 1766, p. [41; Lind's " Remarks on the Prin- 
cipal Acts of the Thirteenth Parliament of Great Britain," 170- 
182; Bancroft, "Remarks on the Review of the Controversy," 23, 
24; Knox's " Controversy," 147-149. 

* See Scobell's " Ordinances," I., 113; H., 87, 132, 176. 



20 Government of the Colony of South Carolina. [20 

a separation of the colonies from the mother government 
would not have taken place. It was this indefiniteness which 
was at the root of the whole difficulty. In the case of Philip 
Craw vs. John Ramsey, decided in the year 1672/ the court 
stated that the colonies belong to the realm of England, 
though not in it territorially, that the colonies could not 
make laws binding England, and that they could not be sep- 
arated from England except by act of Parliament. In other 
words, the view was gaining ground that the powers of the 
Crown over the colonies could be limited in certain cases by 
act of Parliament, and this view would not have been ex- 
pressed in open court without the King's consent. 

The Revolution of 1688 changed matters somewhat. The 
Crown was placed at the disposal of Parliament, thus mak- 
ing Parliament the supreme power in the realm and giving 
to that body the right of colonial administration as well as of 
legislation. In 1706 was published a statement by Chief 
Justice Vaughan^ to the efifect that the King could have no 
rights adverse to those of Parliament, and that attempts like 
those of James I. and Charles I. to govern the colonies as 
a part of their own private patrimony would not be allowed. 
The colonies were declared to be a part of England and 
subject to laws made for them by Parliament. The next 
step was to assert the right of Parliament to amend any 
patent granted to the King, or to declare void such parts 
as abridged in any way the rights of Parliament over the 
colonies.^ These rights were not pressed at first. The 
colonies continued to be governed by expedients, the King 
managing the colonies according to his own will, while 
Parliament merely oversaw and regulated his actions. But 
the amount of oversight gradually increased.* The first acts 
passed by Parliament in regard to the colonies regulated 
trade and commerce alone, merely extending to them pro- 

' Vaiighan's Reports, P. 274, at p. 300. == lUd., p. 400. 

^ In 1714. " North Carolina Colonial Documents," II., 136, 143. 
* See for example, " Joui-nals of the Commons," XXIL, 488-490, 
549, 550, 590.. 



21] Colonial Dependence, 21 

visions similar to those existing in England for several 
centuries previous/ With the increase in trade came the 
need of more stringent rules and closer supervision, and it 
became necessary to appoint English, officials to be resident 
in the colonies. The acts were passed by Parliament, but 
the officials were appointed by the King, through the instru- 
mentality of the Board of Trade. 

From passing acts relating to the colonies in general. 
Parliament gradually turned its attention to passing acts 
relating to specific colonies, mentioning them by name. 
Thus in 1710 it was forbidden to cut down pine trees fit for 
masts in New England, New York and New Jersey. In 
1 75 1, Massachusetts, Rhode Island and Connecticut were 
forbidden to issue paper lnoney and declare it to be a legal 
tender. In 1767, New York was forbidden to pass any 
act or resolution until provision had been made to furnish 
the King's troops with necessaries. In 1730, permission 
was given to. carry rice from Carolina to the continent of 
Europe direct, a privilege later extended to Georgia and 
Florida.^ Finally, in 1766, Parliament formally announced 
that the colonies " have been, are, and of right ought to be 
subordinate unto, and dependent upon, the Imperial Crown 
and Parliament of Great Britain; and that the King's 
Majesty, by and with the advice and consent of Parliament, 
had, hath, and of right ought to have, full power and author- 
ity to make laws and statutes of sufficient force and validity 
to bind the colonies ... in all cases whatever."^ To-day 
the ultimate control over the colonies is vested in Parlia- 
ment. Many colonies, to be sure, govern themselves, but 

^ See 12 Car. II., c. 18; 15 Car. IL, c. J; 22 and 23 Car. H., c. 26; 
25 Oar. II., c. 7; 7 and 8 W. III., c. 22. 

29 Anne, c. 17; 24 Geo. II. , e. 53; 7 Geo. in., c. 59; 3 Geo. II., 
c. 28; 8 Geo. II., c. 19; 10 Geo. III., c. 31. 

^ All colonial votes or resolutions denying or questioning the 
right of Parliament in this respect were declared void. 6 Geo. 
III., c. 12. See also "Journal of the Commons," XXX., 499, 
500, 602; XXXII., 185; "Journals of the Continental Congress," 
I., 29, October 14, 1774; Chalmers' " Revolt," I.. 413. 



22 Government of the Colony of South Carolina, [22 

their constitutions were obtained from Parliament, by whom 
they may be amended, altered or revoked at any time. 

It has already been stated that according to the early 
views ithe title to the New World was vested in the Crown. 
The sovereign ruler had the right to do with it as he pleased, 
to govern it personally or through another, and charters 
or patents once granted were deemed valid until the breach 
of some condition gave the Crown a right to repeal them. 
The earlier patents were given to encourage discovery or 
conquest. The first English grant of land for the purpose 
of colonization was that made by Queen Elizabeth to Sir 
Walter Ralegh in 1584. All subsequent charters given by 
the English monarchs were modeled upon this one to Ralegh, 
although varying greatly in detail. In general, the grantees 
were given power to govern themselves or their colonies, 
according to certain rules and limitations laid down by the 
Crown, but were expressly forbidden to do anything con- 
trary to the laws of England. The English settlers were 
grouped into districts, each under a separate government 
and known by different names. In England they were re- 
ferred to collectively as plantations."^ Districts over which 
Governors were appointed by the Kijng were generally 
spoken of as " provinces " ; where the Governors were elected 
by the inhabitants, as "colonies." The settlers generally 
spoke of all the districts as " colonies " because of the idea 
of dependence contained in the word " province."^ 

South Carolina was first visited by Europeans in 1520. 
In that year Lucas Vasquez de Ayllon landed near Port 
Royal, spent a few days in examining the country and then 
returned to Hispaniola. In 1525, having received a com- 
mission from the Emperor Charles V. as Governor of the 

^ Parliament referred to them, in the legislative acts, as " Do- 
minions thereunto belonging." 

^ See Pownall (5th edit.), I., 50-61, 141; Stokes, 2; Bancroft, " Re- 
view of the Controversy," 14-21. Thus South Carolina, although 
never a " colony " from the English point of view, is referred to 
in this monograph as such in accordance with the American usage. 



23] Colonial Dependence, 23 

country that he had discovered, he returned to the place 
before visited, but his ships foundered and his men perished, 
and South Carolina failed to come under the rule of Spain. 

The next attempt to settle the country was made in 1562, 
when Jean Ribault landed at Port Royal with several Hu- 
guenots, who had been sent over at the expense of Charles 
IX. of France, upon the earnest solicitation of the Huguenot 
leader, Admiral Coligny. A fort was soon erected, named 
in honor of the King, Arx Carolina. Ribault returned to 
France for reinforcements, and the remainder of the colony 
soon followed him. In 1564 another French expedition 
landed at the mouth of St. John's river, Florida, but it was 
swept away in the following year by the Spaniards, who laid 
claim to the country ."" 

Sixty years passed by before any further attempt was 
made to settle South Carolina. In 1629, Charles I. of Eng- 
land granted to his Attorney-General, Sir Robert Heath, 
the territory south of Virginia, under the name of Carolana. 
Two or three feeble attempts were made to colonize this 
territory, but no settlement was ever actually made under 
this grant.^ 

On the restoration of Charles II. he sought to reward 

^ An excellent account of these French colonies is given in Gaf- 
farel's "Histoire de la Floride Frangaise." See also Hakluyt, 
" Voyages, Navigations, Traffiques and Discourses of the English 
Nation," ITT., 304-360; French's "Historical Collections of Louis- 
iana," TTI., 197-222; I. (N. S.), 165-362; II. (N. S.), 158-190. 

^ The patent is given in *' North Carolina Colonial Records," I., 
1-13, and Coxe's " Carolana," 109-112. See Sainshury's " Calend- 
ars," I., 102, 109, 110, 190, 194, 207; n., Nos. 476, 525; IV., No. 151; 
" South Carolina Historical Society's Collections," I., 200-202; NeiU, 
" English Colonization of America during the Seventeenth Cen- 
tury," 213, 214. The early Virginia charter had included Carolina 
within its Mmits. It is worthy of note that the first patent cover- 
ing the district was granted by the Emperor Charles V.; that the 
first attempt to found a colony there was made at the expense of 
Charles IX. of France, that a charter to settle the country was 
given by Charles I. of England, and that a settlement was actually 
made during the reign of Charles IT. of England. It is therefore 
perhaps unnecessary to discuss the question whence Carolina re- 
ceived its name. 



24 Government of the Colony of South Carolina. [24 

those who had been most instrumental in causing his re- 
turn to the throne. Among other grants, he gave, under 
the name of CaroHna, the territory included between 31° 
and 36° north latitude, and extending from the Atlantic to 
the Pacific, to eight noblemen: the Earl of Clarendon, his 
companion in exile, who had materially contributed to his 
return; General Monk, later Duke of Albemarle, who had 
also aided in his return; the Earl of Craven, a member of 
the Privy Council and a distinguished military leader; Lord 
Ashley, an astute politician and later Earl of Shaftesbury; 
Sir George Carteret, who had sheltered Charles in his flight; 
Sir William Berkeley, who, as Governor of Virginia, had 
for a time prevented that colony from recognizing Crom- 
well; and Sir John Colleton, an active partisan of the King 
during the Protectorate. The charter is dated March 24, 
1662-:^. At the time there were a few straggling settlers 
in the territory; some Virginians had settled on the Chowan, 
and a few adventurers from Massachusetts had settled on 
Cape Fear river; to the former was given the name of 
Albemarle; to the latter, that of Clarendon. Two distinct 
forms of government were adopted for these settlers.^ At 
the same time the King declared the patent to Heath void 
for non-settlement, and ordered the Attorney-General to 
proceed by inquisition or scire facias to revoke all grants 
of the territory of Carolina made prior to 1662.^ Heath 
had sold his patent to the Earl of Arundell. After passing 
through several hands it was transferred, in 1696, to Daniel 
Coxe of New Jersey. The patent was never legally declared 
void, and Coxe's descendants, after twice obtaining from the 
Board of Trade a recognition of the validity of their patent, 
received from the Crown in 1768, in settlement for their 
claims to the territory of Carolina, one hundred thousand 
acres of land in the interior of New York, including the 

^ For the forms see Sainsbury's " Calendars," III., No. 1620; 
Rivers, " Sketch," 33.5-337; and " North Carolina Colonial Docu- 
ments," I., 75-92. 

2 The Order in Comicil is given in Rivers, *' Sketch," p. 65, note. 



25] Colonial Dependence. 25 

present towns of Paris, Kirkland and Westmoreland and 
part of the city of Rome/ 

Several colonists arrived from England and the Barbadoes 
and efforts were made to colonize the territory ; but as these 
settlements were found to be on land not included within 
the grant to the Proprietors, the King was induced, June 
30, 1665, to grant a new charter, very similar in contents 
to the former, but extending the limits of Carolina on the 
north to 36° 30', the present northern boundary of North 
Carolina, and on the south to 29°, to include the settle- 
ments already, made. The Proprietors were given the land 
in free and common socage,^ with all the rights that any 
Bishop of Durham "ever heretofore had, held, used, or 
enjoyed, or of right, ought or could have, use or enjoy " in 
his Palatinate. The rights and privileges of the Bishops of 
Durham had been very extensive, but since the Reforma- 
tion they had steadily decreased in number, until, in 1646, 
the Palatinate was abolished. Charles 11. restored the 
bishopric, depriving it of all feudal incidents, however. 
Hence the rights and privileges of the Bishop of Durham 
were much less extensive in 1663 than in earlier years, 
which accounts for the insertion in the patent of the words 
" ever heretofore had." They seem to have been at their 
height at the opening of the fourteenth century, and an 
enumeration of the rights of the Bishop in the year 1300 will 
give an idea of the powers conferred by Charles II. upon 
the eight noblemen in 1665. They included the right to 
hold courts of all kinds and to appoint court and other 

^ See " Historical Manuscripts Commission," llth Report, Ap- 
pendix, Part IV., pp. 254-256; Coxe, "Oarolana"; "New Yorlc 
Colonial Documents," YII., 926; MacPherson's " Annals of Com- 
merce, Manufactures, Fisheries, and Navigation," III., 480; 
" North Carolina Colonial Records," I., 35, 519. See also 
Jones, " Annals and Recollections of Oneida County," 59, 60, 
where an abstract of the grant is given. See also " Laws of New 
York," 1810, c. 139; 1811, c. 105. 

^ In which the service rendered is fixed and certain, as opposed 
to military tenure, where the service is uncertain. 



26 Government of the Colony of South Carolina. [26 

officials of all grades, to issue writs, precepts and mandates, 
and to raise forces and levy subsidies in their own name, to 
have a mint and coin money, to pardon treasons, murders, 
felonies and misdemeanors, to have a Parliament, grant 
charters, create a nobility, and receive forfeitures and es- 
cheats of every description/ A few of these rights, how- 
ever, were somewhat abridged by subsequent provisions in 
the charter. In return for these extensive grants and privi- 
leges, the Proprietors were to give the King one-fourth of 
all the gold and silver found in the colony, pay a yearly 
rental of twenty marks and recognize him as their sovereign 
lord. Practically these three provisions were valueless, for 
no Carolina mines were worked until after the Revolution- 
ary War, and the Proprietors seem to have been as remiss 
in paying their yearly rental" to the King as the colonists 
were in paying quit-rents to them, while the King was recog- 
nized as sovereign lord only when it seemed dangerous not 
so to recognize him. 

It early became evident that a general scheme of govern- 
ment must be devised if the territory was to be properly 
governed. The scheme adopted was that drawn up by 
'Shaftesbury, with the aid of his friend, the philosopher 
John Locke. This document, generally referred to as the 
Grand Model, but to which the name " Fundamental Con- 
stitutions '' was given, was adopted July 21, 1669, and was 
informally assented to individually by the colonists who 
sailed from England a month later. The Proprietors later 
referred to this as a ^' rough sketch "^ and sent to the col- 
onists for their ratification, in accordance with the pro- 
visions of the charter, a revised set bearing the date March 
I, 1669-70. Failure to persuade the settlers to assent to 
the irevised form resulted in two modifications bearing the 
dates of January 12, 1681-2 and August 17, 1682, respec- 

^ See Sir Thomas Duffus Hardy's Introduction to tlie " Register 
of Richard de Kellawe," in the " Rolls Series." 
2 " North Carolina Colonial Records," II., 722. 
^ Chalmers' " Annals," II., 331. 



27] Colonial Dependence, 27 

lively. These, as well as a revision by the Assembly in 
1687, the settlers refused to consider, and the Proprietors 
made no serious effort to force them upon the colonists, 
A final revision by Governor Archdale, April 11, 1698, met 
the fate of its predecessors.'^ 

According to the Fundamental Constitutions, the num- 
ber of Proprietors was always to ' remain eight, none of 
whom, after 1701, was to be allowed to dispose of his share, 
which descended to heirs male. Eight ofhces were created, 
of which each Proprietor was to hold one: Palatine, Ad- 
miral, Chamberlain, Chancellor, Constable, Chief Justice, 
High Steward, and Treasurer. The eldest Proprietor was 
Palatine; the other Proprietors chose their ofhces in order 
of seniority.'' Each officer was at the head of a supreme 
court. The Palatine's court consisted of all the Proprietors. 
Its duties were to call assemblies, elect officers, locate towns, 
dispose of money, approve or veto measures proposed by 
the colonial Council, etc. Each of the other courts con- 
sisted of the proper Proprietor and six Councillors, con- 
cerning whose election very elaborate provisions were made. 
The Chancellor's court had charge of the great seal, licensed 
printing, made treaties with the Indians, etc. The Chief 
Justice's court heard appeals, registered documents, etc. 
The Constable's court had charge of the arms, garrisons, 
forts and the militia. The Admiral's court looked out for 
the forts, tide-waters and shipping. The Treasurer's court 
had charge of matters relating to finance. The High Stew- 
ard's court had charge of trade, manufactures, public build- 
ings, roads, drains, bridges, fairs, surveys, locating towns, 
etc. The Chamberlain's court cared for ceremonies, her- 

1 Sainsbury's " Calendars," III., Nos. 84, 157, 284; Trott's " Laws 
of South Carolina," pp. viii.-x. The first set contained 111 arti- 
cles; the second and third, each 120; the fourth, 121; the fifth, 
41. The set generally referred to by the writers is the second, 
although they almost invariably speak of it as the first. 

^'After 1708 the Palatine was elected by all the Proprietors col- 
lectively, and the other oflices were abolished. See " South Caro- 
lina Historical Society Collections," I., 176. 



28 Government of the Colomj of South Carolina, [28 

aldry, pedigrees, registries of births, marriages and deaths, 
fashions, games and sports. Each court had twelve Assist- 
ants to prepare and put in order any business referred to it. 
Each was of the highest grade and no appeal could be taken 
from its decisions." The other provisions, relating to the 
nobility, local courts, legislature, lands, towns, etc., will be 
considered in their proper places. The form of govern- 
ment actually adopted in South Carolina, however, differed 
greatly from the scheme as outlined. The small number 
of inhabitants at first rendered it impossible to put the 
elaborate " Constitutions " into operation, and the larger 
number of inhabitants later refused to permit its introduc- 
tion. Temporary laws were therefore sent over by the Pro- 
prietors" and adopted at the outset, and the form later 
assumed in the history of the colony was a development of 
this temporary form, which will be explained at length in 
subsequent chapters. 

The amount of friction between the colonists and the 
Proprietors was considerable. In the early years of the 
colony the Proprietors had expended large sums of money 
in the hope of ultimately obtaining large returns. Their 
colonial possessions, however, proved rather a burden in- 
stead of a source of income. The settlers, on the other 
hand, had many complaints and, feeling that the Proprie- 
tors were not treating them fairly and justly, they did not 
render them the obedience which the Proprietors felt to be 
their due. Furthermore, troubles arose between the Pro- 
prietors and the Crown. The revocation of the extensive 
grants made by the earlier Stuarts was desired by James 
II. His Attorney-General was ordered to proceed by writ 
of ^210 warranto against the charters of the colonies of 
Rhode Island and Connecticut, and against the Proprietors 
of Maryland, Carolina, Delaware, East and West Jersey 

^ See §§ 1-6 and §§ 28-49 of the second set of Fundamental Con- 
stitutions, whicli is the set referred to in this monograph. 
2 Sainsbury's " Calendars," III., Nos. 515, 713, 867, 1307. 



29] Colonial Dependence. 29 

and Pennsylvania/ The Proprietors of Carolina retained 
their charter by offering to surrender it and delaying its 
surrender until after the Revolution of 1688. In 1689, 1695, 
and again in 1700, William advised the repeal of all charters, 
and Anne, in 1706, formally instituted proceedings against 
the Carolina charter, but the Proprietors continued to gov- 
ern their possessions until the Carolina Revolution of 171 9. 
The causes of the Revolution of 171 9 were many, but 
may all be included under the general head of dissatisfaction 
v^ith the Proprietors. In the first place, the failure of the 
Proprietors to aid the settlers in money or by troops to 
protect the colony against the savage attack of the Yem- 
assees in 171 6 and their subsequent appropriation of the 
Indian lands to their own private use did not tend to con- 
ciliate a body of men at the time smarting under earlier 
injustices. Furthermore, there was great dissatisfaction 
with Chief Justice Trott, who was said to be partial in his 
decisions, to increase his fees illegally, to argue cases in his 
own court and to decide in court upon the validity of papers 
previously drawn up by himself. Complaints of these prac- 
tices were answered by the Proprietors with a censure. 
Again, the Council and Assembly were dissolved for listen- 
ing to and favoring reforms in the government. Finally, 
various salutary acts of the Assembly were disallowed, 
notably the reform in the method of holding elections. A 
new Council was appointed which consisted entirely of 
friends of the Proprietors. The Governor undertook to 
regain many privileges which had been surrendered by his 
predecessors. A war with Spain had been declared and 
a Spanish invasion was expected. The Governor sum- 
moned the militia to be prepared in case of an attack. But 
a conspiracy was formed quietly and quickly, and November 
28, 1 71 9, the 'militia informed the Governor that the colon- 
ists had decided for the future to recognize the King, and 
not the Proprietors, as their sovereign. A similar message 

1 " North Carolina Colonial Records," I., 352, 354, 359. 



30 Government of the Colony of South Carolina, [30 

was sent by the newly elected Assembly. An attempt of the 
Governor to temporize meeting with failure, he issued a pro- 
clamation dissolving the Assembly. But the Assembly re- 
solved Hits election to have been illegal and adjourned to a 
neighboring tavern, where it continued to sit as a " conven- 
tion." A proclamation was issued directing all officials to 
remain in office until further orders. A Governor was 
selected who gave new commissions to the officers of the 
militia, and the machinery of government continued in oper- 
ation without a break. All attempts of the proprietary Gov- 
ernor to regain control of the government failed, for no one 
was found to obey his orders.^ The Revolutionary Con- 
vention, December 23, 171 9, next resolved itself into a 
colonial Assembly and appointed a new Chief Justice, Sec- 
retary and other public officials. Letters were sent to the 
Board of Trade explaining their conduct and asking that 
Carolina be made a royal colony.^ The Crown had long 
desired to be rid of proprietary governments, but hesitated 
to declare the charter forfeited until it was evident that the 
settlers actually preferred a royal form of government.^ Sep- 
tember 27, 1720, the Attomey-Gereral was ordered to bring 
a scire facias to vacate the charter, and a royal Governor 
over South Carolina was appointed for the first time. The 
Proprietors saw their American possessions melt away, but 
looked on listlessly* until 1726, when they made an earnest 
efTort to regain the colony by the appointment of officers 

^ For an account defending the Proprietors and condemning 
Got. Johnson and the colonists in unmeasured terms, see Chal- 
mers' "Revolt," II., 86-92. 

^ The letters are given in full in Rivers, " Chapter," 39-50. See 
" Collections," n., 143, 144. 

^ For a full account of the Revolution, see Yonge, " A Narrative 
of the Proceedings of the People of South CaroUna in the year 
1719," printed in full in Carroll's " Historical Collections of South 
Carohna," II., 143-192. 

*An attempt to sell the colony to some Quakers for £230,000 
failed to be consummated. See Townshend Papers, in " Historical 
Manuscripts Commission," 11th Report, Appendix, Part rv., p. 255. 



31] Colonial Dependence. 31 

of administration and justice.^ Failing in this and subse- 
quent attempts/ they finally offered to sell their charter to 
the King.^ The title of seven-eighths of the colony* of Car- 
olina was transferred to the Crown for £17,500, and seven- 
eighths of the quit-rents for £5,000, the colonists at the time 
being £9,500 in arrears. The share of one of the Proprie- 
tors, Lord Carteret, was not purchased. His undivided 
eighth was iexchanged in 1743 for a strip of land lying be- 
tween 35° 34' north latitude and the southern boundary 
of Virginia, and' extending from the Atlantic to the Pacific, 
which, however, was lost to him by the war of the American 
Revolution.^ Carolina, which under the Proprietors had 
been considered a single colony, though containing two 
distinct governments, was, after the purchase by the King, 
considered two colonies, and ever after referred to as such.^ 
After 1 71 9, South Carolina was governed as a royal prov- 
ince, and the method of governing such dependencies remains 
now to be described. The colonial governments were at 
first modeled upon that of Durham, but they very early 
began to be treated as was the Island of Jersey, which had 
come to England as a part of Normandy, but had been 
retained on the surrender of continental Normandy to 
France. The government of Jersey was vested in the King, 
and' appeals from the Jersey courts lay to the King in Coun- 
cil as Duke of Normandy.^ The great increase in the num- 
ber of colonies during the reign of Charles I. induced that 
monarch to appoint a " committee " to oversee their manage- 

^ " Collections," L, 172, 173, 175, 197, 198, 235. ■ 

2 " Collections," I., 239, 242. 

^"Collections," L, 174, 175, 243; "North Carolina Colonial Re- 
cords," n., pp. iii. and 721; III., 6, 32-47; Townshend Papers, 
supra, p. 256; " Journals of tlie Commons," XXI., 166, 179, 330; 2 
Geo. II., c. 34, 

* There were eleven Proprietors by this time. 

^ Carroll, I., 360; " CoUections," II., 284; " North Carolina Colo- 
nial Records," IV., 655-663. 

^ The Albemarle colony receiyed the name of North Carolina and 
the Ashley River colony that of South Carolina. 

' See Pownall (5th ed.), I., 61-63. 



32 Government of the Colony of South Carolina. [32 

ment. By the commission, which bears date of April 28, 
1634/ twelve persons were appointed, under the name of 
" Commissioners of Foreign Plantations," to make laws and 
orders for the colonies, to impose penalties for ecclesias- 
tical offences, to remove Governors, to appoint Justices and 
to establish courts.^ But the commission seems to have 
made no attempt to govern the colonies, and a return was 
soon made to the former system of appointing a sub-com- 
mittee of the Privy Council for foreign plantations.^ 

October 20, 1643, upon the rupture with the King, a com- 
mittee was appointed by the House of Commons,* which 
managed the colonies after a fashion until the execution of 
the King, January 29, 1649/ During the following month 
the House of Commons decreed the abolition of royalty 
and of the House of Lords, and placed th-^^ executive power 
in 'the hands of a Council of State consisting of'^ forty-one 
members.*' The Council was subdivided into several com- 
mittees, and lall matters of importance were referred to the 
proper committee before consideration by the Council as a 
whole. The " Committee for Trade and Plantations " was 
early established,'' but was later divided into a ^' Committee 
for Trade " and a " Committee for Plantations."^ These 
gave way, December 2, 1652, to a standing committee of 

^ Tlie plan had been broached three years before. See Sains- 
bury's " Calendars," L, 138. 

^ lUd., I., 177, Another commission, similar to the above, was 
issued two years later, lUd., I., 232. It is given in full in Rymer's 
" Foedera," XX., 8-10; Hazard's *' State Papers," I., 344-347; Pow- 
nall (4th ed.), Appendix, pp. 67-73; (5th ed.), Appendix, 11., 155- 
163. 

^ Sainsbury's " Calendars," I., 281 et seq. 

* " Journals of the Commons," III., 283. The ordinance is given 
in full in Hazard's " State Papers," I., 344-347 and 633-634. 

^"Journals of the Commons," HI., 296, 299; IV., 475, 476, 648, 
695; v., 171, 405, &c. 

'^ See the letter by the Council to the colonies, July 24, 1649, in 
Sainsbury's " Calendars," I., 330. 

' March 2, 1650, Ibid., I., 335. 

« February 18, 1651, Ibid., I., 352. 



33] Colonial Dependence. ^ 33 

twenty-one members of the Council, who transacted all the 
business relating to trade and plantations, without reference 
to the Council of State/ Thus, for example, this committee 
granted a charter to Rhode Island, appointed Governors 
over several of the colonies, heard complaints and corrected 
abuses as far as possible.^ 

The desire of the House of Commons to retain entire 
control of the colonies after the Restoration was checked, 
July 4, i66o, by the Privy Council appointing a Committee 
for Plantation Affairs/ The Commons, however, demanded 
a committee, independent of the Privy Council, to enforce 
the Navigation Act which had recently been passed. In 
accordance with this demand, Charles II. appointed, Novem- 
ber 7, i66o, a standing Council of Trade,* and on the first 
day of the following month a standing Council for Foreign 
Plantations.^ Both councils included members from the 
Privy Council as well as nobles, gentlemen and merchants; 
the duty of the former was to carry out the provisions of the 
Navigation Act as it related to Great Britain, while the duty 
of the latter was to obtain reports from the colonial Gov- 
ernors, hear complaints, maintain justice, make the govern- 
ments uniform in the various colonies and bring them 
under stricter control.^ After two slight reorganizations^ of 
the Council for Foreign Plantations, it was consolidated, 
September i6, 1672, with the Council of Trade, under the 
name of Council of Trade and Plantations.^ But ap- 

'- lUd., I., 394, 477. 

2 Chalmers' " Revolt," I., 85-93. 

^ The patent is printed in full in " New York Colonial Docu- 
ments," m., 30. 

* For the commission see *' New York Colonial Documents," III., 
30-32. 

•' Ditto, lUd., in., 32^34. 

" Sainsbury's " Calendars," I., 492. The instructions are printed 
in "New York Colonial Documents," III., 34-36. 

^July 30, 1670, the membership was reduced from forty-eight 
to ten, increased March 20, 1671, to sixteen. See Sainsbury's 
" Calendars," III., Nos. 342, 470. 

« Sainsbury's " Calendars," III., Nos. 923, 992. 



34 Government of the Colony of South Carolina. [34 

parently there was some dissatisfaction with the Council, 
for, two years later, the King revoked their commission and 
transferred their duties to the Privy Council/ The Privy 
Council, March 12, 1675, appointed several committees; 
among others, one called Lords of the Committee of Trade 
and Plantations, to which the duties formerly exercised by 
the Council, with some modifications, were given/ Feb- 
ruary 16, 1689, this Committee was reduced from: twenty- 
one to twelve and the members thereof were appointed by 
the Crown instead of by the Privy Council/ 

This Committee of Trade and Plantations with its various 
changes existed until 1696. On January 31 of that year 
resolutions were introduced into Parliament favoring the 
establishment of a Council of Trade, the members of which 
were to be appointed by Parliament. The duties of this 
Council were to consider the trade and manufactures of the 
plantations and to ascertain the best method of improving 
the same for the benefit of English merchants/ A bill was 
later introduced embodying the substance of these resolu- 
tions/ But the King, on the fifteenth day of May, rendered 
further action unnecessary by establishing a Board of Trade 
and Plantations, consisting of seventeen members, including 
the Chancellor, President of the Privy Council, Lord Treas- 
urer, Bishop of London, Lord Admiral, Chancellor of the 

^ Sainsbury's "Calendars," in., No. 1412; IV., No. 429; "New 
York Colonial Documents," III., 228; Chalmers' " Opinions," p. vii. 

^ The patent is given in " New York Colonial Documents," IIL, 
229, 230, and " North Carolina Colonial Records," I., 223. See also 
Pownall (5th ed.), I., 65, and McCulloch's " Miscellaneous Essay 
Concerning the Courses Pursued by G-reat Britain in the Affairs 
of her Colonies: With Some Observations on the Great Import- 
ance of our Settlements in America, and the Trade Thereof," 23- 
2t>; Sainsbury's " Calendars," IV., Nos. 460, 461, 463, 464, 648, 649, 
650. 

3 " New York Colonial Documents," III., 572; Sainsbury's " Cal- 
endars," rv., No. 879, 

* The resolutions are given in fun in the " Journals of the Com- 
mons," XI., 423, 424. 

» February 12, 1696. Ibid., XL, 440. 



X' 710841 



35] Colonial Dependence. 35 

Exchequer, and the two Secretaries of State.^ This Board 
received from the Privy Council all the books, papers, etc., 
relating to trade and the plantations. Their duties were simi- 
lar to those of their predecessors: to examine all acts passed 
in the colonies, review the proceedings of colonial Assem- 
blies, examine complaints, redress grievances, prepare all 
colonial instructions, recommend suitable persons for 
colonial appointments, and make annual reports to the 
King, copies of which both Houses of Parliament generally 
demanded and received.^ 

The duty of the Board was, in reality, to advise the King, 
and its power and usefulness depended to a very great extent 
upon the attention paid to its advice. A strong Ministry 
almost entirely ignored it, while a weak Ministry paid great 
deference to it. All colonial matters coming to the atten- 
tion of any official were referred to the Board, to be decided 
as' might seem best. But their decisions were not final. 
They were frequently rendered useless by the caprice of 
the Ministry or King. On the whole, however, it must be 
admitted that the' Board performed very creditably the task 
assigned to it, although the routine work was performed 
almost entirely by its secretary. The many and intricate 
law questions that were continually arising were referred 
at first to the Attorney and Solicitor-General for opinion. 
But with the increase of business, one of the King's counsel 
was appointed^ to attend to the law department of the Board. 
The power of the Board steadily decreased after the acces- 
sion of George HI., until in 1768 its authority was revived 
and a Secretary of State for the Colonies was appointed, 

' " New York Colonial Documents," IV., 145-148. Vol. III., pp. 
xiil.-xix., contains a list of all members of the board until its abo- 
lition in 1782. 

^ McCulloch's " Miscellaneous Essay," 29-41; Chalmers' " Revolt," 
I., 270; Chalmers' " Opinions," p. viii. See for example, " Jour- 
nals of the Commons," XXI., 934; XXII., 488-490, 590; XXX., 448- 
451. 

^In 1714. 



36 Government of the Colony of South Carolina. [36 

who was made an ex-officio member of the Board/ In 
1782, after the close of the American Revolution, the Board 
was abolished as unnecessary, and the care of the English 
colonies again returned to the Privy Council.^ 

* In regard to tlie duties of Secretary of State see " New York 
CJolonial Docmnents," HI., p. v.; IV., 754; VII., 848; VIH., 7. 

2 McCulloch's "Miscellaneous Essay," 52-62; Chalmers' "Opin- 
ions," pp. Yiii.-xx. 



CHAPTER HI. 
Governor and Council. 

Section 59 of the Fundamental Constitutions provided that 
the eldest Proprietor in Carolina should act as Governor. 
Before 1690, however, the Governor of Carolina was named 
by the Palatine;' after that date he was appointed by a ma- 
jority of the Proprietors/ subject, after 1696, to the approval 
of the Crown, to whom he gave bonds, with satisfactory 
security, for the proper observance of the navigation acts." 
When South Carolina became a royal province the right to 
appoint Governors became vested in the Crown. This power, 
however, was generally exercised by the Board of Trade, 
who considered applications for governorships and recom- 
mended to the King for appointment such persons as seemed 
most worthy, and the King generally appointed the nominee 
of the Board.* There are several instances, however, of the 
failure of the King to commission nominees of the Board, or 
even to wait a year or two before finally ratifying the ap- 
pointment. The custom generally was to appoint a needy 
Englishman to the office, although in a few cases a promi- 
nent man in the colony was selected. It was also not uncom- 
mon to transfer a Governor from one colony to another. 

1 Rivers, "Sketch," 352, 354, §1; Sainsbury's "Calendars," IH., 
No. 867. 

2 Rivers, " Sketch," 430; " Collections," I., 126, 133. 

^ 7 and 8 W. III., c. 22, § 16, and 8 and 9 W. III., c. 20, § 69. 
" North Carolina Colonial Records," I., 461. See " Collections," 
I.. 152, 165, 177. 181, 206. 212; IL, 216. 228, 241, 246, 248, 249, 
254; Chalmers' " Revolt," I., 274. The Crown refused to accept 
Joseph Blake as Governor because of his known hostility to the 
navigation acts. " Collections," I., 214; " North Carolina Colonial 
Records." I.. 530. 

* See McCulloch, " Miscellaneous Essay," 41; " New Jersey Co- 
lonial Documents," VIII., 23-26. 



38 Government of the Colony of South Carolina, [38 

The intention of the Proprietors at the outset was to divide 
the territories into several distinct colonies, over each of 
which a Governor was to be appointed; but ere long these 
colonies had been reduced to two, — ^Albemarle and Ashley 
River. In 1690, the Proprietors, having decided to unite 
the two governments and rule them as one colony, appointed 
the Governor of Albemarle as Governor of Ashley River 
also. But this arrangement did not give entire satisfaction, 
for the interests of the two colonies were very diverse, and 
the Governor resided in Charleston and governed North 
Carolina by means of a deputy.^ Thus in 1712 the Proprie- 
tors returned to the old system of two Governors for the 
two colonies, although no formal division between the two 
was made. The Revolution of 1719 was confined to the 
southern colony alone, and between 1720 and 1728 the 
inhabitants of the southern colony were governed by an 
appointee of the Crown, while the inhabitants of the north- 
em colony paid allegiance to the appointee of the Proprie- 
tors. During the royal period each colony had a Governor 
entirely independent of the other.^ 

After appointment, a Governor received his commission. 
Commissions were at first very brief, simply informing the 
recipient of his appointment to office f but by the middle of 
the eighteenth century they had become greatly extended, 
stating his duties and powers at great length.* With his 
commission, which was couched in general terms, he also 
received instructions which were more specific in character. 
A Governor received but one commission, while his instruc- 
tions were innumerable. The latter varied greatly in the 
early years, but in time they became fixed, and one set dif- 
fered but little from its predecessors." The Governor was 

1 " North Carolina Colonial Records," I., 384, 389, 554, 694. 

2 On the question of boundaries see " North Carolina Colonial 
Records," V., 372-393; Vin., 554-574. 

^A fac-simile of Gov. Smith's commission of 1693 is given in 
" Harper's Monthly " for December, 1875, p. 17. 

* Stokes, pp. 150-164, gives one in full. 

^ See " CoUections," II., 175, 189, 194. 

\ 



39] Governor and Council. 39 

expected to enter upon his duties as soon as he could con- 
veniently, generally within a year from the time of receiving 
his commission. James Glen, however, did not start until 
five years had elapsed after the issue of his commission. 
Immediately upon his arrival in the colony the Governor 
called a meeting of the Council, where* his commission was 
read and recorded and he himself took the oaths of Allegi- 
ance and Supremacy, signed the Declaration against Tran- 
substantiation, etc., as required of all English officeholders, 
which acts inaugurated him into office.^ 

The extent of the Governor's powers is well shown by his 
title. His commission appointed him " Captain-General and 
Govemor-in-Chief in and over the Province, and Chancellor, 
Vice- Admiral and Ordinary of the same."^ His powers were 
executive, legislative, judicial, ecclesiastical and military. 
He could remove any official or councillor for cause and 
appoint a temporary successor or fill a vacancy, while sev- 
eral officials were under his direct appointment. He alone 
called, prorogued and dissolved the Assembly and granted 
pardons and reprieves. He also acted as Chief Justice in 
the Court of Errors, probated wills and granted administra- 
tion. But his powers were somewhat abridged in the later 
colonial period by his being compelled to obtain the consent 
of the Council before anything of importance could be done 
or any appointment be made.^ Moreover, he was expected 
to be in constant communication with the Board of Trade, 

^ Stokes, 150, 177. The oaths were required by 1 Eliz., c. 1; 3 
Jac. I., c. 4; 12 Car. TL., c. 18, § 2; 13 and 14 Car. II., cc. 3 and 4; 
15 Car. II., c. 7; 25 Car. IL, c. 2, § 9; 1 W. & M., cc. 1 and 8; 1 
W. & M., Sess. II., c. 2, § 3; 3 W. «& M., c. 2; 7 and 8 W. HI., c. 
22, §4; 8 and 9 W. IH., c. 20, §69; 6 Anne, cc. 7, 14 and 23; 1 
Geo. I., Stat. II., c. 13, § 1; 4 Geo. III., c. 15, § 39; 6 Geo. HI., c. 
53. They are eollected m Stokes, 178-183. 

2 Stokes, 149; Carroll, 11., 220. Under the Proprietors his powers 
were not as extensive. Prior to 1712 he was merely Governor, 
"Collections," I., 160. 

^ The powers are stated in fuU in the various commissions, but 
they varied greatly from time to time. See Stokes, 150-164; Riv- 
ers, '•Chapter," 66, §37; 79, §46. 



40 Government of the Colony of South Carolina. [40 

who heard complaints against him and redressed grievances, 
having his bond to sue upon if necessary." He was also 
expected to send home copies of all documents signed, proc- 
lamations issued, and all records of the courts. Assembly and 
Council/ But these expectations were seldom realized, and 
the State Paper Office at London contains many requests 
from the Board of Trade to Governors to forward docu- 
ments. 

The question of the Governor's salary caused less trouble 
in South Carolina than in other colonies. Until 171 9 it 
was paid by the Proprietors, although an attempt was early 
made by them to throw its payment upon the colonists.^ 
But after South Carolina came under the control of the 
Crown the latter always insisted that a stated annual salary 
be paid by the colony. This, however. South Carolina 
refuised to do.* Tax bills and appropriation acts were 
passed annually for the year last past, and then only after 
other legislation had been approved, thus forcing the Gov- 
ernor to call an annual session of the Assembly or wait indefi- 
nitely for his salary.^ His salary as paid by the Proprietors 
at first was £200 a year,^ later increased to £400; under the 
Crown it was isoo sterling a year, besides house-rent.'^ In 
addition to these '^ annual gifts " of the Assembly and a small 
salary from the King, the Governor received a large income 

^ For crimes and oppression Governors were tried before the 
King's Bench m England, 11 and 12 W. III., c. 12. 

2 " New Jersey Colonial Documents," VIII., 26; Postlethwayt, 
I., 426. 

« In 1677, " Collections," I., 101, 155. 

* Ibid., II., 119, 135, 145, § 25. 

^ See Johnson's " Reminiscences," 8. For an exception see 
"Collections," H., 287. 

^ Sayle received but £40, Sainsbiu"y's " Calendars," ni., No. 474; 
West, £60, Rivers, " Sketch," 391. 

" " Collections," I., 138, 152, 155, 165, 299; " Statutes," III., 317, 
336, 360, 392, 447; IV., 63, 137, 199, 224, 278; "Historical Manu- 
scripts Commission," 11th Report, Appendix, Part IV., 255. An 
act was passed in 1712 to erect a Governor's house, but its pro- 
visions were never carried out. See " Statutes," 11., 380-381. 



41] Governor and Council. 41 

from fees for licenses, writs, probate of wills, letters of ad- 
ministration, etc.^ 

A Governor served during pleasure, and was liable at any 
time to be confronted by a successor. Under the Proprie- 
tors, prior to 1691, the Governor could be removed by the 
Palatine alone ;^ after that date, by six Proprietors against 
the will of the Palatine.* After 1721 he was removable by 
the King alone. He was generally allowed, by and with the 
consent of the Council, to appoint an acting Governor dur- 
ing his absence, a right frequently exercised.* Lieutenant- 
Governors were frequently appointed in the islands, but 
seldom on the continent. Col. Broughton was the only 
Lieutenant-Governor commissioned in South Carolina.^ If 
the Governor died or withdrew from the colony without 
designating a successor, the vacancy was filled by the Coun- 
cil before 1721; after that date the duties of Governor were 
performed by the senior councillor in appointment.® The 
salary of a Lieutenant-Governor or acting Governor was 
half that of the Governor, with fees, but with no allowance 
from the King.^ After the departure of Governor Campbell, 
in September, 1775, the civil administration of the colony 
was conducted by the Provincial Congress through com- 
mittees. This Congress drew up a constitution, which was 
promulgated in March, 1776, and under which South Caro- 
lina was governed until the adoption of the more permanent 
constitution of 1778. 

^ See tables of fees, " Statutes," II., 3, 19, 40, 87, 145; III., 415; 
Townshend Papers, in " Historical Manuscripts Ck)mmission," 11th 
Report, Appendix, Part IV., 265-6. 

2 Rivers, "Sketch," 352, 354, §1. 

» Rivers, " Chapter," 60. 61, § 7. 

* Rivers, "Sketch," 341; Rivers, "Chapter," 61, §19; "Collec- 
tions," I., Ill; "North Carolina Colonial Records," I., 706; Sains- 
bury's " Calendars," III., No. 606. 

= Stokes, 163, 234, 235; " Collections," II., 263. 

•"Collections," I., 154, 182; H., 172, 176, 177, 208; Rivers, 
" Sketch," 341; Rivers, " Chapter," 66, § 34, 76; Stokes, 164. 

' " Statutes," III., 447, 481, 511; IV., 223, 248, 278; " Collections," 
II., 177; " New York Colonial Documents," VIII., 347. 



42 Government of the Colony of South Carolina, [42 

The Council was intended by the Proprietors to be the 
governing body of the colony. Hence, the provisions of 
the Fundamental Constitutions relating thereto were very 
elaborate. They provided that the Council should consist 
of fifty members, comprising the eight Proprietors and the 
forty-two councillors connected with the seven supreme 
courts.^ Monthly meetings were to be held, at which con- 
troversies were to be decided, questions relating to war and 
peace settled, treaties drawn up and bills prepared for the 
consideration of Parliament, the popular legislative body. 
Thirteen should form a quorum, but no business should be 
transacted unless one Proprietor or a specially authorized 
deputy were present.^ But this system was never put into 
practice, and the form of the Council subsequently adopted 
was a development of the form temporarily prescribed in 1670 
and 1671. According to these temporary laws promulgated 
by the Proprietors, the Council consisted of ten members, 
five appointed by the Proprietors and five by the freemen 
of the colony, who, with the Governor, ruled the colony in 
every particular.^ In 1671, the Council was increased to 
fifteen members, the additional five consisting of the five 
eldest of the nobility.* In 1690, the number was reduced to 
seven, one being appointed by each of the Proprietors 
(except the Palatine, who appointed the Governor).^ In 
1 71 9, six months before the Revolution, the number was 
increased to twelve, appointed by the Proprietors jointly." 
Throughout the royal period the number remained at twelve, 

^ See page 27. 

= Fimdamental Constitutions, §§28, 50-60. 

' Sainsbnry's " Calendars," III., Nos. 86, 213, 514, 688, 721; Riv- 
ers, " Sketch," 347. The Councillors representing the freemen 
were chosen by the Assembly after 1672. Rivers, " Sketch," 352, 
§1; 366, §3; "Collections," L, 115. 

* Rivers, " Sketch," 366, § 3; 369, § 3; 352, § 1; Sainsbury's " Cal- 
endars," III., Nos. 514, 867. 

'^ Rivers, " Chapter," 61, § 9; 67, § 43; " Collections," I., 165. 

" " Collections," I., 170; Carroll, II., 158; *' North Carolina Colo- 
nial Records." II., p. vi. 



43] Governor and Council, 43 

all being appointed by the King through the Board of Trade, 
though generally nominated by the Governor from substan- 
tial men in the colony/ Appointments were made for an 
indefinite period of time, and could be revoked at pleasure.^ 
The King generally appointed a new set of councillors with 
each newly commissioned Governor,^ and Governors were 
allowed to suspend councillors for cause, immediate notice 
of which, however, was expected to be sent to the Board of 
Trade.* Vacancies were variously filled at different times. 
Before 1690, the eldest councillor elected by the Assembly 
became a proprietary councillor in case of vacancy. Under 
Sothell, vacancies were filled by the remaining members of 
the Council. From 1691 to 1721, vacancies were filled by 
the Governor with the consent of the Council. After 1721, 
vacancies were temporarily filled by the Governor until the 
wishes of the King were made known, and generally the 
Governor's appointee was confirmed.^ 

Meetings were held irregularly at the call of the Governor.** 
A quorum consisted of three, but the Governors were always 
requested to do nothing, except in cases of extraordinary 
emergency, unless seven were present.'^ As the members 
served without pay, and during the earlier period at least 

^ " Collections," I., 284; II., 145, 146, 176, 274, 295; in., 321; Riv- 
ers, " Chapter," 18, 68-70; Carroll, II., 220; Stokes, 237. 

2 " CoHections," I., 88, 109. Ill, 118, 185; Rivers. " Chapter," 61, 
§6. 

^ The new councillors took the various oaths at the first meeting 
they attended. " CoUections," I., 87; II., 176; Stokes, 151, 152, 
177, 237. 

**' Collections," I., 88, 109, 161, 165; II., 146, 172, 176; Stokes, 
153, 240. 

« Rivers, "Sketch," 353, 355, 430; "CoUections," I., 127; II., 176, 
274; III., 321; Rivers, "Chapter," 61, §10; Sainsbury's "Calen- 
dars," III., No. 713, §9; No. 867, §4. 

«" Collections," L, 82; Rivers, "Chapter," 65, §33. The Sur- 
veyor-General of the Customs and the Superintendent of Indian 
Affairs were allowed seats after 1720. Stokes, 237; Carroll, II., 
220; " Collections," II.. 126. 

' " Collections," II., 172, 176; Rivers, " Chapter," 71; Stokes, 153. 



44 Government of the Colony of South Carolina. [44 

were compelled to pay for fire, light and contingent charges/ 
it is not surprising that the meetings were poorly attended. 
In fact, it was often impossible to obtain a quorum, although 
the Governor had power to suspend members absenting 
themselves without cause." Under the Proprietors, the Gov- 
ernor being the Palatine's deputy, was entitled to a seat and 
vote as a member of the Council, a right he generally exer- 
cised. During the royal period, however, the Governor was 
not a member of the Council and was not entitled to a seat 
in it, although he continued to sit as a member for several 
year after the Revolution of 171 9.' 

The duties of the Council were advisory, legislative and 
judicial. In the early history of the colony all legal ques- 
tions came before it for decision ; but with the growth of the 
colony and the establishment of regular judicial tribunals 
it relinquished the greater part of its legal business to the 
courts, retaining only the right to act as a court of appeals 
and a court of chancery.* Its legislative functions were 
greater. At first, its ordinances had the force of laws. But 
after the establishment of a second house, composed of dele- 
gates elected by the freemen of the colony, it took the form 
of an upper house, bearing in some respects a resemblance 
to the English House of Lords, with which body it has been 
frequently compared. But by far the greater part of its 
work consisted in giving advice to the Governor, to whom 
it supplied the place of a cabinet or privy council." With 

^Carroll, H., 155. 

^ Rivers, " Chapter," 70, §§ 11, 13; " Collections," I., 170, 284; II., 
176, 304. Shortly after his arrival in South Carolina, Gov. Glen 
wrote to the Board of Trade that he was unable to obtain a 
quorum, as one member was sick, four had been in England for 
several years, two were away on a leave of absence, one was in 
New York, and two others hved too far away to attend meetings. 
" Collections," II., 295. See also " Considerations on Certain Po- 
litical Transactions," 72. 

'' Rivers, " Chapter," 47; " Collections," I., 142; II., 286, 304. See 
Chalmers' "Opinions," I., 231; Forsyth's "Opinions," 67, 79; 
" New York Colonial Documents," VI., 40, 41. 

* See pages 82, 86. ^ Stokes, 239; OarroU, II., 144. 



45] Governor and Council. 45 

its consent the Governor summoned and dissolved the Com- 
mons House of Assembly, issued proclamations, etc. What 
could or could not be done without its consent varied greatly 
at different periods; but, in general, it may be said that 
nothing of importance could legally be done by the Gov- 
ernor without the consent of the Council first obtained/ 
Copies of all records and votes of the Council were de- 
manded by the Board of Trade; but Governors were known 
to send home expurgated or illegible copies of the records, 
or at times none at all."^ 

The Secretary was an official second only to the Governor 
in importance. He was appointed by the Proprietors until 
1720, and by the King after that year.^ His salary was £40 
a year under the Proprietors and £200 under the King.* 
His duties were to keep the records of the Council, record 
all judicial and ministerial acts of the Governor, write com- 
missions, record land patents, and, in earlier years, to act as 
Register of Deeds.^ He, as well as the Governor, was con- 
stantly urged to send copies of all records to the Proprie- 
tors, and later to the Board of Trade.^ 

The only other colonial officer needing mention here is 
the Treasurer. Before 1707, he was appointed by the Pro-^ 
prietors, and until 1721 was known as the Receiver. At 
first, his duties were to collect fines, receive the quit-rents, 
pay the expenses of government, and remit the surplus, if 
any, to the Proprietors.'' In other words, he acted as the 

^ " Collections," I., 154, 182; II., 96: Rivers, " Chapter," 67, § 41; 
90. §95. 

2 Rivers, *' Chapter," 91; McCuUoch, "Miscellaneous Essay," 40, 
43, 44, 61; Postlethwayt, I., 426, 467. 

^ " Collections," I., 89, 110; Rivers, " Sketch," 416; Rivers, 
" Chapter," 62; Carroll, II.. 221. 

*" Collections," I., 155; 11., 275; Carroll, II., 155; "Historical 
Manuscripts Commission," 11th Report, Appendix, Part IV., 255. 

^"Letter from South Carolina," 27; MoCulloch, 39; "Collec- 
tions," I., 227; II., 177. 

''Rivers, "Chapter," 78, §39; "Collections," I., 88, 145, 168. 

' " Collections," I., 146, 155, 159; " Letter from South Carolina," 
27. 



46 Government of the Colony of South Carolina. [46 

fiscal agent of the Proprietors. Until 1707, there was also 
another Treasurer, appointed by the Assembly, to receive 
and keep all moneys belonging to the colony/ As it seemed 
unnecessary to have two treasurers in the colony when the 
work could be performed by one, the Assembly, in 1707, 
very quietly declared its right to appoint the Receiver to act 
for the Proprietors and the Assembly jointly,^ a right, how- 
ever, questioned by the Proprietors as long as they retained 
control of the colony .'' During the royal period, the King 
appointed a Rec'eiver-General of the Quit-rents,* but the 
colonial Treasurer, who acted as Receiver also, was ap- 
pointed by the Assembly." His duties were to receive all 
dues and taxes and to pay out money as directed by the 
Assembly.^ In 1771, two joint Treasurers were appointed; 
in 1776, the treasury department was placed under the care 
of three commissioners.' 



^See for example " Statutes," II., 203, § 16. 

^ " Statutes," II., 299. Reiterated in 1707, 1716, 1719 and 1720. 
See "Statutes," II., 305. §12; 655, §§23, 24; III.. 61, §21; 103. 

3 " Collections," I., 166. 

*" Collections," II., 275; Carroll, II., 221; Sainsbury's "Calen- 
dars," II., 57. 

^"Statutes," III., 148, §1; 166, §21; 197, §20; 565, §28; Pownall 
(2d ed.), 52; Carroll, II., 221; " Collections." II., 303. 

« " Statutes," II., 351, §1; 654, § 23; III., 166, §21; 200, §20; 565, 
§28. 

^"Statutes," IV., 326, 342. 



CHAPTER IV. 
The Assembly. 

The General Assembly of colonial South Carolina con- 
sisted of three branches : the Governor, the Council, and the 
representatives of the freemen. The charter conferred upon 
the Proprietors the right to pass laws "with the advice, 
assent and approbation of the freemen of the province." 
The Proprietors endeavored to follow this provision liter- 
ally. In their Fundamental Constitutions they provided for 
a biennial session of Parliament, which was to consist of the 
Proprietors, the nobility and one freeman from each colonial 
precinct. The members were to sit in one room, and each 
person was to be entitled to one vote. But no bill was to 
be considered that had not been previously approved by 
the Grand Council, nor was any act to be binding until it 
had been approved by the Palatine and three Proprietors 
or their deputies.'' The early parliaments were conducted 
according to this scheme, but they had few acts to approve, 
since nearly all were passed as ordinances of the Council.^ 
The delegates of the freemen were greatly dissatisfied with 
this meagre share in the government, and ere long a change 
took place. Parliament no longer ratified or disallowed 
the legislation of the Council, but framed its own bills upon 
the latter's recommendation, and shortly afterwards gained 
equal rights with the Council in the initiation of legislation.^ 
At about the same time (1689) the Proprietors ordered the 
Council to levy no taxes without the consent of Parliament, 

^Fundamental Constitutions, §§51, 71-76. 

2 Rivers, " Sketch," 348, 369; Sainsbury's " Calendars," III., Nos. 
213, 612, 692; OarroU, n., 71, 297. 

=" Rivers, " Sketch," 396, 416. See extract from the Journal of 
the Commons, May 15, 1694, in Winsor's "America," V., 314. 



48 Government of the Colony of South Carolina, [48 

whereupon the latter body not only claimed the sole right 
to introduce all money bills, but even refused to allow the 
Council to amend them, in spite of instructions to the con- 
trary from the Proprietors/ The name of " Parliament " 
gave way, in 1691, to that of "Assembly," and the Council 
assumed for itself the position of the British House of Lords, 
referring to the delegates of the freemen as the " Lower 
House." This was bitterly resented by the latter, and was 
frequently the cause of altercation between the two bodies. 
The delegates of the freemen were generally known as the 
" Commons House of Assembly," or simply the " Assem- 
bly."^ 

According to the Fundamental Constitutions, each colo- 
nial precinct was to be allowed to send one member to the 
Assembly.^ Until the colony should be divided into pre- 
cincts, the Proprietors directed the Assembly to consist of 
twenty members. They did not represent any particular 
district, but represented the colony at large and were all 
elected at Charleston, thus rendering it an easy task for the 
government to secure the election of its own creatures.* 
With the growth of the colony came a demand for reform. 

1 " Collections," I., 123, 237, 302; Rivers, "Chapter," p. 78, §35. 
See extract from the Coramons Journal, 1745, in Winsor's " Am- 
erica," v., 334; "Considerations on Certain Transactions," 26, 27, 
41; "Answer " to preceding, 24, 30-38, 

^ The Commons objected to the use of the term " Upper House " 
as early as 1700 and as late as 1775. See Ramsay, I., 52; Carroll, 
I., 129; Stokes, 28; " Southern Literary Messenger," March, 1845, 
p. 142; "Historical Magazine," November, 1865, p. 346; Drayton's 
" Memoirs," H., 12, 13; " Considerations on Certain Political 
Transactions," 33-46, 78; "Answer" to preceding, 91, 93-99, 110. 
In 1729, the Board of Trade forbade the use of " Commons 
House," substituting therefor " Lower House of Assembly." See 
" Collections," II., 119. This order was quietly ignored. 

'§7L 

* Rivers, "Sketch," 348, 355, 366; Sainsbury's "Calendars," HI., 
Nos. 86, 514; CarroU, H., 148. A picture of the tumultuous election 
of 1701 at Charleston is given in Crafts, " Pioneers in the Settle- 
ment of America," II., 183. 



49] . The Assembly, 49 

The Proprietors suggested a few changes in 1691/ but 
nothing was done until 171 6, when an election act^ was 
passed which entirely changed the system of holding elec- 
tions. For religious purposes the colony had been divided 
into parishes in 1706, and the election act provided for the 
election of members of the Assembly by parishes, each 
parish being allowed a certain number of representatives, 
varying according to population. A supplementary act was 
passed the following year,^ and an Assembly elected in accord- 
ance with the new act. But the Proprietors disallowed both 
acts,* whereupon another act was passed in 1719, similar to 
the preceding,^ which, although disallowed,^ was nevertheless 
declared by the Assembly, after the Revolution of 171 9, to be 
still in force.^ In 1721, a new act was passed, substantially 
the same as the preceding, which remained in force, with 
sHght changes in 1745 and 1759, until the outbreak of the 
American Revolution.^ As it was a prerogative of the 
Crown to grant representation in the colonial Legislatures, 
the Board of Trade in 1730 disallowed the act of 1721.° No 
attention, however, was paid to the disallowance. By the 
election act of 1716, the number of members of Assembly 
was placed at thirty, increased to thirty-six by the act of 1 719. 
With the erection of new parishes and the division of old, the 
number, by 1775, had been increased to forty-eight, very 
unequally distributed.'''' Throughout the entire colonial pe- 
riod there was a property qualification for members of the 

^ " North Carolina Colonial Records," I., 377. 

2 " Statutes," II., 683-691. 

' " Statutes," in., 2-4. 

' " Collections," I., 167, 171, 190; " Statutes," m., 31, 69. 

' " Statutes," III., 50-55. « '* Collections," I., 171. 

' February 12, 1720, " Statutes," III., 103. 

« " Statutes," in., 103, 135-140. 

' See Chalmers' " Opinions," I., 294; " Collections," n., 191, 193, 
194, 305; ni., 121; Story, § 184; " New York Colonial Documents," 
Vn., 946; " New Jersey Colonial Documents," IX., 637-638. 

'"Representation was confined to parishes alone throughout the 
entire colonial period. 



50 Government of the Colony of South Carolina, [50 

Assembly. Under the Proprietors it consisted of a freehold 
of five hundred acres of land anywhere/ Under the King, 
it consisted of a freehold of five hundred acres of land in 
South Carolina and twenty slaves/ or other property to the 
value of iijOoo proclamation money; moreover, a member 
must be la natural-born subject of Great Britain or her colo- 
nies, or naturalized by act of the British Parliament, twenty- 
one years of age and a resident of South Carolina for the 
preceding twelve months/ 

According to the Fundamental Constitutions, the Assem- 
bly was to meet upon the first Monday of November in 
alternate years, without special summons; extra sessions 
could be called by the Palatine's court on forty days' notice.* 
This arrangement was followed in the early years of the 
colony, but after the reorganization of the government in 
1 691 Governors were allowed to summon Assemblies at will."^ 
Writs for the election of members were issued by the Gov- 
ernor by and with the advice and consent of the Council.*^ 
They were followed by a proclamation, dated and signed by 
the Governor, summoning the Assembly to meet at a certain 
time and place for the transaction of business.' The mem- 
bers met at the appointed time* and place, signed the Decla- 
ration against Transubstantiation, took the oaths of Allegi- 

^ Fundamental Constitutions, § 72; Rivers, " Sketch," 355; Daloho,. 
" An Historical Account of the Protestant Episcopal Church in 
South Carolina," 16. 

2 Ten until 1745. 

' These provisions varied slightly at different times. See " Stat- 
utes," II., 689, § 20; III., 3, §§ 3, 4, 6; 52, § 9; 137, § 8; 657, § 2; IV., 
99, § 3; 356; Chalmers' " Opinions," I., 268, 271-276; " New York 
Colonial Documents," Vn., 946. 

* § 73. Sainsbury's " Calendars," III., No. 514. 

^ Rivers, " Sketch," 366, § 2; Rivers, " Chapter," 63, § 20; " Col- 
lections," II., 172; Weston, 202. 

' Rivers, " Chapter," 63, § 20; " Collections." II., 304; Stokes, 154; 
" Statutes," II., 687, § 15. 

' See " Collections," H., 96. 

^ Generally at ten o'clock in the morning, Porcher's " Memoir 
of General Christopher Gadsden," p. 4. 



51] The AssemUy, 51 

ance and Supremacy, declared that they possessed the neces- 
sary quahfications/ organized and sent two members to the 
Governor to deliver their message to him. This was ac- 
cepted, and a reply promised, which was sent later.'' The 
Speaker was chosen by the House, but was approved by the 
Governor, generally at the time of delivering his first speech 
to them."" The Clerk was theoretically appointed by the 
Governor, although the custom was for the Assembly to 
nominate and the Governor to approve or refuse.* A 
quorum was early fixed at a majority of the members. When 
the number of members was increased to thirty-six in 1719 
a quorum was fixed at nineteen, and it remained at that 
figure until the close of the colonial period. Seven could 
meet, choose a chairman and adjourn or summon absent 
members to appear. Less than seven were adjourned by 
the Governor and. Council to a stated day.^ The statutes of 
1685 were passed by only seven members, the remaining 
thirteen having been expelled by the Governor for refusing 
to acknowledge the validity of the Fundamental Constitu- 
tions.^ 

The procedure and customs of the English House of 
Commons were imitated by the Assembly as far as pos- 

^ For provisions respecting oaths see " Statutes," II., 691, § 28; 
III., 4, §5; 53, §10; 55, §20; 137, §9; 140, §19; 657, §3; 692, §8; 
lY., 100, §§4, 5, 7; "Collections," I., 87; Stokes, 154. 

== " Collections," I., 290; II., 97, 98. See, for example, the " South 
Carolina and American General Gazette," December 13, 1769, pp. 
1 and 3; Carroll, II., 103. 

^ " Collections," n., 119; Carroll, I., 228; II., 166, 442; Weston, 
201; "Letter from South Carolina," 19. 

* "Collections," II., 119, 273. See also I., 134, 247, 248, 249; IL, 128; 
ni., 301; Chalmers' "Revolt," II., 170, 175, 192; CarroU, IL, 221. 
Gov. Johnson, in 1730, allowed the Assembly to appoint its own 
clerk. Chalmers' " Revolt," IL, 169. 

^ Fundamental Constitutions, § 78; " Statutes," 11., 80; 605, §§ 3, 
4; 691, §§26, 27; IIL, 55, §§18, 19; 139, §§17, 18. Glen thought 
the number too high. " Collections," IL, 305. De Brahm is in 
error in stating it to be thirteen. See Weston, 201. 

«" North Carohna Colonial Records," IL, 842-852. 



52 Government of the Colony of South Carolina, [52 

sible/ After the early period, all bills originated in the 
House of Assembly.' There the bill was referred to the 
appropriate committee, which, in due time, reported to the 
House. The bill was read twice and then sent to the Coun- 
cil by two of its members. The Council read it twice and 
returned it by the Master in Chancery, with amendments if 
any. The Assembly then read it a third time and again sent 
it to the Council. If the latter passed it, it was again re- 
turned to the Assembly, and the Clerk was ordered to have 
it engrossed. In case of disagreement between the two 
branches, a joint committee was appointed to bring in a 
compromise bill or to bring about an understanding be- 
tween the two branches. At the close of the session, the 
Governor, Council and Assembly met in the council cham- 
ber. The Speaker read the titles of the bills agreed upon 
by the two branches and presented them to the Governor 
for approval or disapproval. If he disapproved, his veto 
was final.^ If he approved, the bill was signed by himself 
and, after 171 9, by the Speaker, when it became a law.* 
This is the reason why all acts passed during a session of the 
Assembly bear the same date. Under the Proprietors the 
bill did not become a law until the signatures of the Gov- 
ernor and at least three Councillors had been obtained. The 
enacting clause varied greatly in wording during the history 
of the colony, although the general idea remained the same. 
In the earlier years the clauses mention the Palatine and 
Proprietors, with the advice and consent of the Commons 
or General Assembly; in the later, the three departments of 
the Legislature are mentioned, — Governor, Council, and 
Assembly.^ 

1 Stokes, 242; "Statutes," HI., 53, §12; 137, §11; " CoUections," 
I., 289, 305; Carroll, I., 298; " Letter from South Carolina," 19. 

^ See " Considerations on Certain Political Transactions," 46. 

« Stokes, 156; " Collections," II., 172. 

* Fundamental Constitutions, § 76; Rivers, " Sketch," 348; Riv- 
ers, " Chapter," 64, § 27; " Letter from South Carolina," 20; " Con- 
siderations upon Certain Political Transactions," 46, 47. 

^ The various changes are best shown in the acts passed in the 
years 1685, 1690, 1716, 1721, 1726, 1731 and 1775. 



53] The Assembly. 53 

The Assembly was allowed to pass no act repugnant to 
the laws of England. A provision to this effect had been 
inserted in the charter to the Proprietors, and was repeated 
in the commissions to the Governors/ The Proprietors 
forbade the Assembly to pass acts diminishing or altering 
any powers granted them by the charter/ Furthermore, 
the Governors were instructed, after 1720, to approve no 
private acts or any acts affecting the rights of the Crown 
unless they contained a clause suspending the effect thereof 
until the pleasure of the King were known/ The question 
whether or not an act were repugnant to the laws of Eng- 
land was settled by the King in council. Copies of all bills 
passed and records of all meetings held were demanded by 
the Proprietors, or King, after 1720, for approval, an in- 
struction generally disregarded by all colonial officials.* 
Prior to 1720, the Assembly was responsible to the Proprie- 
tors alone, and the Crown punished the latter for approving 
improper legislation, rather than the former for indulging 
in it.^ All acts were supposed to be sent to the Proprietors 
for approval immediately after passage, and all expired at 
the end of two years unless within that time they had been 
approved. Hence, the Assembly in the seventeenth century 
was accustomed to pass acts for such short periods of time 
that they must necessarily expire before the Proprietors 
would have an opportunity to disallow them." During the 

^ Rivers, " Sketch," 336; " Ck)llections," I., 131; Stokes, 155; Car- 
roll, II., 220. 

^ " CoUections," I., 131. 

^ Rivers, " Chapter," 71, 72; " Collections," II., 177; " New Jersey- 
Colonial Documents," VIII., Pt. I., 28, 35. This suspending clause 
was rarely inserted, however. Pownall (2nd ed.), 45. 

* Fundamental Constitutions, § 56; " Collections," L, 87, 131, 142, 
160, 161, 165, 170; H., 177; Rivers, " Chapter," 78, § 40; McCuUoch, 
"Miscellaneous Essay," 38, 39; "Representation of the Board of 
Trade," p. 4; Postlethwayt, I., 462. 

'^ " Collections," I., 207; II., 250; " North Carohna Colonial Re- 
cords," II., 143. 

« Rivers, "Chapter," 65, §§27, 29; "Collections," I., 156, 168; 
"North Carolina Colonial Records," II., 136; "Statutes," II., 3, 
139; " Representation of the Board of Trade," p. 5. 



54 Government of the Colony of South Carolina, [54 

royal period a similar policy was pursued. All acts passed 
by the Assembly were sent to the Board of Trade within 
three months after their passage and continued in force for 
eighteen months, unless sooner disallowed by the Crown. 
If not definitely allowed before the end of that time, they 
ceased to continue in force. Acts once disallowed by the 
King could not be re-enacted without his consent first 
obtained.^ The veto power of the Proprietors and King 
was used with the greatest freedom. 

The Assembly was summoned, prorogued and dissolved 
by the Governor.'' The departure or death of a Governor 
did not dissolve the Assembly, nor, after 1696, did the death 
of the King determine an Assembly until six months had 
passed after notification given of his death.^ The Assembly 
could only adjourn from day to day.* The Fundamental 
Constitutions called for biennial sessions of Parliament, and 
the life of an Assembly throughout the greater part of the 
colonial period remained at two years, unless sooner dis- 
solved by the Governor,^ although a session was generally 
held annually.^ The Assembly met at Charleston,^ the capi- 

1 Rivers, " Chapter," 73, §§ 19, 20; 77, § 34; " Collections," II., 
172, 177; Stokes, 156; Weston, 202; Chalmers' "Opinions," I., 362. 

2 See Fundamental Constitutions, § 73; Rivers, " Chapter," 65, 
§ 30; " Collections," I., 154, 289; II., 172; Stokes, 156, 242; " Stat- 
utes," II., 605, §2. The Governor could prorogue or dissolve it 
even before it met. Chalmers' " Opinions," I., 232, 270, 271. 

3 Chalmers' " Opinions," I., 245, 247, 255; H., 2; " Statutes," IV., 
149, 150. See 7 and 8 W. in., c. 27, §21; 1 Anne, St. I., c. 8, 
§§2-6; 6 Aime, c. 7, § 8; 1 Geo. II., St. I., c. 5, §2; 1 Geo. H., St. 
II., c. 23, § 7. 

* Stokes, 242; Rivers, "Chapter," 77, §35; " Collections," II., 176. 

^ Fundamental Constitutions, §73; "Statutes," II., 80; III., 692. 
From 1721 to 1745, the period was three years. " Statutes," III., 
140, § 21; Carroll, II., 220. From 1745 to 1747, it was one year. 
" Statutes," III., 657, § 5. Stokes probably had this last period 
in mind when he stated that elections were annual. Stokes, 242. 

« " Statutes," II., 80; III., 140; Weston, 202. But the colonists 
had no right to " demand " annual sessions. See Chalmers' 
" Opinions," 188-189, 243; " New York Colonial ^Documents," VII., 
946. 

'A summons to meet at Beaufort in 1772 was resolved to be 
oppressive. See "Answer to Certain Political Considerations," 

64, 72, 74; Fraser's " Reminiscences," 99. 



55] The Assembly. 55 

tal of the colony, in hired apartments, until 1755, when a 
State House was completed/ Charleston remained the capi- 
tal of South Carolina until 1787/ when, in consequence of 
the growth of the interior, a town was laid out in the central 
part of the State for a capital, and at this place, Columbia, 
the Assembly of South Carolina has since sat. 

1 " Statutes," TIL, 244, 264, 317, 336, 393, 446, 482, 511, 750; IV., 
59; Weston, 195; Shecut's " Medical and Philosophical Essays," 
20. None was built in accordance with the act of 1712, " Stat- 
utes," II., 378. ^ 

^"Statutes," IV., 751. 



CHAPTER V. 
The Land System. 

South Carolina lies between 32° and 35° 12' north latitude 
and 78° 30' and 83° 30' longitude west of Greenwich. In 
shape it strongly reminds one of an isosceles triangle, having 
as the equal sides the boundary lines on the north and south- 
west, with the coast as the base line. The area has been 
variously estimated, from 24,080 square miles by Ramsay in 
1808, to 34,000 square miles by the Federal government in 
the census of 1870. 

The State may be divided into seven regions, fairly well 
marked and parallel to one another. The first, and the 
one which is of most interest to us, is the Coast Region, 
which includes the coast and the salt marshes bordering 
upon the sea. From Winyaw Bay to North Carolina there 
are no islands, the coast being a smooth, hard beach. South 
of Winyaw Bay the shore is lined with islands; those between 
Winyaw Bay and Charleston harbor being numerous, low 
and small, while those south of Charleston are much larger. 
The principal products of the region to-day are com, cotton, 
small grain, rice and sweet potatoes. The early settlers paid 
very little attention to agriculture, but exported pearl and 
pot ashes, skins, naval stores, etc. Rice was introduced in 
1693, and has been a staple product ever since. Indigo was 
introduced in 1742 and soon became an important article of 
export. Very little, however, has been produced since 1800 
and almost none since 1850. Indian corn was at first neg- 
lected; it became a staple article of export about 1740. Cot- 
ton is mentioned as early as 1664, but very little was ex- 
ported prior to the Revolutiqu. The Lower Pine Belt or 
Savannah Region includes the territory for fifty miles inland 
parallel to the Coast Region, containing in all about ten 



57] The Land System. 57 

thousand square miles. Fresh water rivers and swamps 
abound. The land is practically a plain, rolling slightly 
along the river banks. The average slope is about three 
and a half feet per mile. The Upper Pine Belt is generally 
referred to as the middle country; it lies from one hundred 
and thirty to two hundred and fifty feet above the sea level, 
and extends across the State, comprising generally the 
counties of Barnwell, Orangeburgh, Sumter, Darlington, 
Marlboro' and Marion, with parts of Hampton and Colle- 
ton, and containing about six thousand square miles. The 
land is level and rolling, and rises the more rapidly in the 
west. The lakes are numerous, but small, and are located 
chiefly in the swamps, which cover about one-sixth the area 
of the district. The slope of the Upper Pine Belt is gradual. 
North of it is an irregular line of high hills two or three 
hundred feet higher than the Pine Belt Region. This is 
known as the Red Hill Region, and includes the hills from 
Aiken to Sumter counties, some sixteen hundred miles in 
extent. East of the Santee the region is not continuous. 
The climate is dryer and more bracing than in the lower 
region. Just above the Red Hills are the Sand Hills. This 
region includes the greater part of the counties of Aiken, 
Lexington, Richland, Kershaw and Chesterfield, with an 
area of about twenty-five hundred square miles. The hills 
rise from the Savannah river to a plateau which falls at the 
Congaree and Wateree rivers. The region west of the Con- 
garee is more elevated than that east of the Wateree. The 
Piedmont Region includes nearly all the northern part of the 
State, and is known as the " upper country," having an area 
of about ten thousand square miles. The elevations vary 
from two to nine hundred feet in height. There is a general 
rise of three hundred and fifty feet from the south to the 
north. The rivers furnish excellent water power, and quar- 
ries of granite and slate abound, while the precious metals 
are to be found in various parts of the region. The Alpine 
Region includes the extreme northwestern part of the State, 
having an area of twelve hundred square miles. The land 



58 Government of the Colony of South Carolina. [58 

is rolling table-land and mountainous, containing gold, cop- 
per and other metals, none of which have been extensively 
mined.* 

According to the Fundamental Constitutions' the terri- 
tory was to be divided into counties. Each county, which 
contained three hundred and eighty-four thousand acres, 
was to be divided into idght seigniories, eight baronies and 
twenty-four colonies. Each Proprietor was to receive one 
seigniory, each barony was to be divided between one Land- 
grave and two Cassiques, and the colonies were to be settled 
by the common people. Counties were to be laid out twelve 
at a time, and after they had become sufficiently well settled 
another group of twelve was to be laid out. The Land- 
graves and Cassiques were to be appointed by the Proprie- 
tors and were to form an hereditary nobility, whose land 
was to be inalienabk. Any settler holding between three 
and twelve thousand acres of land could have his holding 
declared a manor, which was alienable. But this system 
was never carried into effect, although several patents were 
granted to Landgraves and Cassiques.^ In 1682, South 
Carolina was divided into three counties, to which a fourth 
was added in the early part of the eighteenth century. These 
county divisions, however, played no part in the history of 
the colony, and were practically obsolete long before 1775.* 

The first colonists landed at Port Royal in accordance with 
the expressed wishes of the Proprietors, but a month later 
moved farther north, settling on the southern side of Ashley 
River near its mouth, and giving their settlement the name of 
Charles Towne." In a few years, however, the settlers 

^ See " Soutli Carolina Agricultural Report," pp. 1-200. 

2 §§3-6, 9-19. 

^ Sainsbury's "Calendars," III., Nos. 492, 721; IV., Nos. 584, 590. 

* See " Collections," I., 82; Rivers, " Chapter," 63; Carroll, II., 
409, 445; "Statutes," III., 370; IV., 262-264; "North Carolina 
Colonial Records," I., 377. 

=^ Sainsbury's "Calendars," III., Nos. 86-'90, 105, 106, 124, 163, 
191, 255. Letters describing the voyage are given in full Id 
" Charleston Year Book," 1886, 241-279. 



59] • The Land System, 59 

moved over to the neck of land opposite, known as Oyster 
Point, which could be more easily defended in case of at- 
tack, and possessed better deep water facilities, and old 
Charles Towne was soon deserted.^ April 23, 1671, the 
Council voted to lay out three colonies: Stono, to the west 
of Charles Towne, James Towne, on James Island, and 
Oyster Point, mentioned above.^ Stono was settled by emi- 
grants from the West Indies, James Towne by nineteen 
Dutch families who had recently arrived from New York.' 
Others followed them from New York and from Holland, 
but they were very soon scattered and their town deserted. 

Aside from the English emigrants from the West Indies, 
the largest accession in the seventeenth century came from 
France. The persecution of the French Protestants by 
Louis XIV. drove the Huguenots from their native land. 
They fled to England, Holland, Germany, and especially to 
America. Of those who sought refuge in England, many 
were transported to the colonies at the expense of the 
Crown.* But by far the largest number emigrated imme- 
diately after the Revocation of the Edict of Nantes in 1685, 
settling principally in New York, Philadelphia, and Charles- 
ton and vicinity: Orange Quarter on Cooper river, Straw- 
berry Ferry, Jamestown on Santee river, and St. James, 
Goose Creek." 

Between 1700 and 1730, very few emigrants settled in 
South Carolina. The limits of the colony then were the 

' See " Charleston Year Book," 1883, 463; " Collections," I., 102; 
Rivers, " Sketcli," 393, 394; MiHs, " Statistics of South Carolina," 
385; Drayton, " View of South Carolina," 200. 

=^ See the entry in " Charleston Year Book," 1883, 463. 

3 " Charleston Year Book," 1883, 379; Sainsbury's " Calendars," 
in., Nos. 428, 432, 664, 746; Brodhead, " New York," II., 176. 

* Three of the first settlers in 1670 had been French refugees in 
England. See "Huguenot Society of America, Proceedings," No. 
1, pp. 34, 40; " Charleston Year Book," 1885, 298. Two shiploads 
were transported to the Carolina^ in 1679. Rivers, " Sketch," 392. 

'^ See " Huguenot Society," as above, 31-36. There were four 
hundred and thirty-eight French in South Carolina in 1698. See 
Rivers, "Sketch," 447; "Collections," II., 198. 



60 Government of the Colony of South Carolina. [60 

Santee on the north, the Edisto on the south, and Dorches- 
ter, twenty miles inland from Charleston. No serious at- 
tempts to settle the interior of the colony were made until 
the surrender of the colony to the King/ In 1729 at the 
suggestion of Gov. Johnson, the King ordered eleven town- 
ships to be laid out: two each on the Altamaha, Savannah 
and Santee, and one each on the Wateree, Black, Wacca- 
maw, Pedee and Edisto rivers. Each township was to con- 
tain twenty thousand acres, was to be laid out in the form of 
a square, and was to contain a town in which the settlers were 
to receive building lots in addition to their fields outside.' 
The Assembly appropriated £5,000 currency a year for seven 
years, to be spent in laying out these townships and in pur- 
chasing tools for and paying the passage of intending set- 
tlers.^ These townships were finally laid out as follows, not 
all in squares and few containing the required number of 
acres: Kingston, on the Waccamaw; Queensborough (never 
settled), at the union of the Great and Little Pedee; Wil- 
liamsburg, on the Black; Fredericksburg (Kershaw county), 
on the Wateree; Amelia, at the union of the Congaree and 
Wateree; Saxe-Gotha, opposite Columbia; Orangeburg, on 
the Edisto; Purysburg, on the Savannah; and New Windsor, 
opposite Augusta, Georgia. The two on the Altamaha were 
never laid out. Perhaps the King, in ordering these town- 
ships to be laid out, was influenced by persons in England 
who were desirous of colonizing tracts of land in the New 
World.* As early as 1722, Purry, a Swiss, had petitioned for 

^The efforts of 1721-1723 were directed solely towards estab- 
lishing frontier towns on the Savannali river. See " Statutes,'* 
III., 123, §§4, 9; 177-178; 180, §2; 182, §15. Aside from the at- 
tempt in 1696," Statutes," II., 124, which was never carried out, 
" Collections," III., 305, the inducements offered intending settlers 
consisted principally in freedom from quit-rents for a term of 
years after settling. 

2 " Collections," II., 122, 177; Carroll, II., 123-125. 

'"Collections," I., 307; "Statutes," III., 301, §25; 340, -§6; 366. 

* A colonization sociey was suggested in 1730. See " Collec- 
tions," n., 127, 128. 



61] The Land System, 61 

and received a grant of land on the Savannah v^hereon he 
might settle a colony of Swiss. In 1730, a new grant of 
sixty thousand acres was made to him by the King under 
certain conditions, and the Assembly guaranteed to support 
three hundred persons for one year and to supply them with 
tools and utensils. In December, 1732, Purysburg, above 
mentioned and named in his honor, was settled.^ In the 
same year, 1732, the territory south of the Savannah, which 
had hitherto been unsettled, was set off as an independent 
province under the name of Georgia. South Carolina ceased 
to be a frontier colony, and from that time on the colony 
grew rapidly. 

The interior townships were quickly settled. £5000 a year 
proved to be insufficient to furnish emigrants with tools and 
to provide for their support. From 1735 to 1766, the money 
arising from the duty on negroes was appropriated to their 
use. In 1740, in addition to conveyance and tools, a cow 
and calf were promised to ever}^ group of five persons settling 
together in a frontier township within five years. In 1761, 
the method of granting the bounty was changed, but a 
bounty in some form was offered all emigrants until the 
breaking out of the American Revolution.^ After the Swiss 
came the Scotch-Irish. A small colony of Scots had settled 
at Port Royal, in 1684, under Lord Cardross, but it had been 
broken up by the Spaniards a year or two later.'' In 1733, a 
large colony of Scots settled in Kingston and Williamsburg 
townships, the first to be laid out after Purysburg. They 
were followed by another band of colonists in 1746, after the 

^ " Collections," I., 196, 233, 248, 273; II., 123, 125, a27, 131, 160, 
166, 179; ni., 317; Chalmers' "Opinions," I., 161, 162; Forsyth's 
"Opinions," 152; "Statutes," III., 340, §6; Can-oil, II., 126; Mills, 
369, 370. 

2 "Statutes," III., 409, §1; 559, §§6, 9; IV., 39, 153, 309. For 
several curious methods of granting aid, see " Statutes," III., 591; 
593; 674, § 7; 741, §§ 6-8; 781; IV., 5, 6. 

== " Collections," I., 92, 109, 124; II., 273. Howe, " Presbyterian 
Church in South Carolina," I., 78-84, .117, 118. A few Scotch had 
settled on Edisto Island in 1700. See Mills, 471; Ramsay, II., 540. 



62 Government of the Colony of South Carolina, [62 

battle of Culloden, for whom the High Hills of Santee were 
reserved.^ Following the Scots came the Welch from Penn- 
sylvania and Delaware. They arrived in 1735, and occupied 
the greater part of Marion and Marlboro' counties." But 
by far the greater number of emigrants came from Ger- 
many. The majority of Germans emigrating to America 
previous to 1728 had settled in Pennsylvania, but the short- 
sighted policy adopted by the Pennsylvania Proprietors in 
that year caused future emigrants to settle in South Carolina, 
where so many inducements were offered them. They set- 
tled first in Orangeburg township, and later in New Wind- 
sor, Amelia, Saxe-Gotha, and Fredericksburg townships, 
until, by 1775, they had spread themselves over the entire 
western portion of the colony ."^ In 1761, two more town- 
ships were laid out on the upper Savannah on the same plan 
as those of 1731: Londonderry, settled by Germans, five or 
six hundred in number, and Hillsborough, containing the 
town of New Bordeaux, settled by Huguenots, numbering 
two hundred and twelve.* A new element began to enter 
South Carolina about the year 1750. The French and In- 
dian War caused the settlers on the frontiers of Pennsyl- 

^ Gregg, " Old Cheraws," 43; " Agricultural Report," 382, 485; 
Carroll, I., 324, 380; Mills, 579-581, 740, 765; Howe, I., 212. Six- 
teen hundred more settled in the colony between 1763 and 1773. 
See Mills, 489; Baird, " Religion in America," 75. These were, in 
all cases, Scotch Protestant Irish and not Catholic Irish, as stated 
in McGee, " Irish Settlers in America," 26. 

2 Gregg, 46-53; Mills, 471, 638; "Agricultural Report," 382, 485; 
Ramsay, 11., 540; Furman, " Charleston Association," 61. 

•^"Collections," I., 297, 306, 307; II., 120, 122, 186, 290, 293; 
Bemheim, " German Settlements in the Carolinas," 42, 43, 128, 161- 
170, 224, 233, 234; Mills, 611, 614, 639, 656, 662, 692; " Statutes," 
IX., 95. 

* See " Agricultural Report," 383; Ca^rroU, n., 485-488; Bernheim, 
161-165; Redington's "Calendars," I., Nos. 1445, 1680, 1683. The 
documents relating to the New Bordeaux settlement are given in 
full, preceded by a brief sketch by W. Noel Sainsbury, in " Collec- 
tions," II., 77-103. See also Moragne's " Address delivered at 
New Bordeaux, November 15, 1854"; Mills, 348; "Agricultural 
Report," 383, 425. 



63] The Land System. 63 

vania, Maryland and Virginia to seek new lands in which to 
dwell. The upper lands of the Carolinas were opened by 
treaty with the Cherokees, in 1755, and the emigrants natur- 
ally entered these fertile lands in large numbers. They set- 
tled by families or in groups of two or three families, and 
retained their former communication and trade relations 
with Philadelphia, Baltimore and Richmond, instead of 
forming new relations with Charle^ton.^ 

The Proprietors earnestly desired the colonists to live in 
communities for the purpose of mutual protection and 
trade,^ but the low, marshy lands were so much better fitted 
for agriculture on a large scale than for town building that 
the few towns which were laid out were very soon deserted. 
In 1775, there were but three towns of any size in South 
Carolina, and those were seaport towns. Chief of these was 
Charleston, which was the seat of government and the most 
flourishing town in the South. The land on which the town 
was built was low and flat, containing several little ponds and 
creeks, many of which were not filled up until after the 
Revolution. The streets were broad and uniform, intersect- 
ing one another at right angles. Owing to the unhealthi- 
ness of the surrounding country, the wealthy planters were 
in the habit of resorting to Charleston during the winter 
months. Consequently Charleston became the social center 
of the colony. Society there was gay and brilliant. Luxury 
and comfort abounded. The houses of the wealthy planters 
were generally built of brick and sumptuously furnished. 
The season was spent in assemblies, balls, dinners, parties, 
concerts, theatricals, sports, gaming and extreme dissipation. 

^ •' AgrictdtnralReport," 383, 425, 615, 616; MiUs, 489, 496-498, 512, 
536, 537, 571, 572. 585, 586, 595, ,604, 622, 629, 639, 671, 692, 724, 
740, 754, 771. An excellent account of the settlement of the " back 
country " is given in Gregg, " Old Cheraws," 126-161, 

2 " Collections," I., 112, 142; II., 172; Rivers, " Sketch," 358, § 16; 
387, § 1; Rivers, " Chapter," 48; Sainshury's " Calendars," III., Nos. 
86, 492, 630, 688, 918. 



64 Government of the Colony of South Carolina. [64 

The history of colonial Charleston is the history of the 
wealthy aristocracy of South Carolina.^ 

The second town of importance was Port Roycd, where the 
French had settled under Ribault in 1562 and where the 
Proprietors had wished the colonists to settle in 1670. Dur- 
ing the Spanish wars, a fort was erected at Port Royal and- 
named Fort Beauford, in honor of one of the Proprietors. 
After the close of the Yemassee war, in 171 7, a town slowly 
grew up around the fort, and in 1795 it contained two hun- 
dred and fifty inhabitants." The third town, Georgetown,^ 
was settled at about the same time as Port Royal, with which 
town it has kept pace ever since, the two being about equal 
in population in 1775.* Besides these three towns, there 
were a few inland villages which may be mentioned in pass- 
ing. Prominent among these was Dorchester, on the Ashley 
river, some twenty miles from Charleston. It was settled by 
a Puritan colony in 1696, and contained some three hundred 
and fifty inhabitants in 1707, with a Congregational church 
and a fort. It began to decline with the removal of the Con- 
gregationalists to Georgi?^, in 1752, and the inhabitants were 
few in numbers in 1775. The place is now in ruins.^ Wilton, 
also called New London, near the mouth of the Edisto river, 
is mentioned as early as 1683, and contained eighty houses 
in 1708.'' Other villages were Childsbury, Edmundsbury, 

^ Carroll, I., 502; II., 484; Mills, 392; Rochefoucauld, " Travels," 
I., 158, 556; De Cr^vecoeur, " Letters from an American Farmer," 
I., 214, 215. An excellent summary is given in Lodge's *' Short 
History of the English Colonies in America," 184, 185. 

2 See '* CoUections," L, 145, 160, 181, 182; III., 289; Carroll, L, 
324; n., 490; Drayton's " View," 200, 208; Mills, 365-369, 453; " Ag- 
ricultural Report," 663-667; Winterbotham's "America," in., 248. 

^ Also referred to as Winyaw, Winyah, Winyeau, Wyneah, Wyn- 
yeau and Wingate. 

* " Collections," II., 173; " Agiicultural Report," 684-7; Mills, 556- 
562; OarroU, II., 490. 

^ See Mrs. Poyas, " Our Forefathers," 85-88; Carroll, IL, 452; 
Mills, 507; "Harper's Magazine," December, 1875, p. 12; " Charles- 
ton Year Book," 1883, 386. 

«Dalcho, 16; Mills, 507; Howe, L, 163; CarroU, IL, 453. 



^5] The Land System, 65 

and Jacksonborough/ Towns were also laid out in the in- 
terior townships, but none of them contained more than a 
few inhabitants. A few houses, inhabited principally by 
Indian traders, were clustered around the frontier forts, but 
aside from these there was, in 1775, no town inland worthy 
of the name, with the single exception of Camden, which 
had been settled by Quakers from Ireland in 1750.'' In fact, 
the whole interior was without a name, and portions were 
referred to in the constitutions of the State adopted in 1776 
and in 1778, as the '^District between the Broad and the 
Catawba," the " District east of the Wateree,'^ the " District 
between the Savannah and the north fork of the Edisto," the 
" District between the Broad and the Saluda," and the " New 
Acquisition."^ 

The title to the lands lay originally in the Indians, and 
according to the view of the day the Crown had the sole 
right to purchase this title from them.* The Proprietors, on 
a few occasions, purchased land of the Indians, but, as a rule, 
they seemed to think that the grant from the King was suffi- 
cient.^ It was their intention to retain the fee in themselves 
and to grant the use of the land to others, reserving a small 
quit-rent only as rental. The amount of the grant and of the 
quit-rent varied at different periods in the history of the 
colony. Before 1696, each settler was granted one hundred 
acres of land for himself and for each man-servant brought 
over by him, at a penny per acre quit-rent.^ In 1694, the 
quit-rent was reduced to one shilling sterling per hundred 

1 Mills, 506, and Appendix, 34; Dalcho, 368; Carroll, I., 332; Davis, 
writing in 1798 (Travels, 61, 67) states that Ashepoo village con- 
tained three houses, and Coosawhatchie one. See also Rochefouc- 
auld, I., 592; Carroll, I., 501. 

2 Mills, 586, 590. 

^1776, §11; 1778, §13. See Moultrie's "Memoirs," 17. 

* Carroll, I., 490; see Johnson & Graham's Lessee v. M'Intosh, 8 
Wheaton's Reports, at p. 573. 

= " Collections,"' I., 107, 109; "Statutes," II., 583, 584. Generally 
speaking, the lowlands were not purchased from the Indians, while 
the uplands were. Ramsay, I., 150. 

« Rivers, " Sketch," 366, § 4. From 1669 to 1671, the amount of 
the grant was one hundred and fifty acres. Sainsbury's " Calen- 
dars," in., Nos. 86, 918. 



66 Government of the Colony of South Carolina, [66 

acres, at which figure it remained until 1731, when it was 
raised to the former figure of one penny per acre.^ Those 
wishing to purchase land in large quantities could obtain 
one thousand acres for £20, at an annual quit-rent of ten 
shillings.'' The fee of the land was seldom parted with/ ex- 
cept in the case of grants to friends, and even then a pepper- 
corn rent was generally reserved.* 

The method of granting land was extremely simple. The 
settler, having selected land not already occupied, made 
application therefor to the Governor, who issued a warrant, 
signed by himself and three councillors, directing the Sur- 
veyor-General to survey the number of acres to which the 
grantee was entitled. This warrant was taken by the appli- 
cant to the Surveyor-General, who surveyed the land and 
gave a certificate to that effect. This certificate was taken to 
the Governor, who then gave the grantee a deed of the land 
granted."* This easy method of obtaining land led many 

1 " Collections," I., 137, 155, 157, 158, 176, 177, 180; II., 89, 91; 
" North Carolina Colonial Records," I., 390, 554; " Statutes," II., 
97, § 2; 102, § 13; 133; 291, § 6; Carroll, II., 125. From 1699 to 1702 
the rate was one penny per acre. " Collections," I., 149, 151. For 
a case of a grant at three shillings per hundred acres, see " Col- 
lections," II., 131. The figures given in Grahame's ** United States 
History," II., 150, are entirely ^laccurate. Baronies paid £20 a 
year rent. " Collections," I., 126. 

=^ " Collections," I., 158, 178; " North Carolina Colonial Records," 
I., 694; " Statutes," II., 102, § 14; Carroll, II., 403. 

^ Until 1695, one thousand acres were sold at £50, and from 1702 
to 1709, at £20. " Collections," I., 120, 124, 125, 151; CarroU, I., 144; 
II., 32, 403; "North Carohna Colonial Reeords," I., 555. Ludwell 
in 1691 was authorized to sell land in lots of six thousand acres, 
at five shillings per acre, without rents. " North Carolina Colonial 
Records," I., 383. 

* See, for example, " CoUections," I., 112, 117, 118, 137, 192; II., 
173; III., 308. 

' " Collections," I., 157; Rivers, " Sketch," 349, 359, 399-403; Car- 
roll, I., 104; II., 32; Blome, "Present State," 159. The Surveyor- 
General was appointed by the Proprietors, or the King after 1720, 
and gave security for the faithful performance of the duties of his 
office. " CoUections," I., 98, 156; II., 275; " North Carohna Colonial 
Records," I., 211; Sainshury's "Calendars," III., 711; Carroll, I., 
61; n., 221, 461. He was paid by fees, regulated by the Assembly. 
See the " Statutes." The system was practically the same through- 
out the whole colonial period. The form of the deed is given in 
" Statutes," II., 96, §§ 1, 2. 



67] The Land System. 67 

speculators to take up large tracts and to avoid the condi- 
tions inserted in the deeds/ Thereupon the Proprietors, in 
1699, forbade grants of more than five hundred acres to be 
made to any one person, and declared that all lands should 
escheat unless a settlement was made thereon within four 
years from the time of the grant/ In 1710, the time was 
reduced to six months, and the Governor was forbidden to 
grant any land whatever except on special warrant from the 
Proprietors, — a provision not finally repealed until 1731/ 

In order to keep track of grantees and to know who were 
responsible for the payment of quit-rents, the Proprietors 
established a system of registration. No title to land was 
allowed to pass until the deed had been duly registered with 
the Register, several minor regulations being adopted to 
prevent the fraudulent obtaining possession of land.* It 
proved to be almost impossible to collect the quit-rents. In 
the early history of the colony only a small percentage of the 
land granted was under cultivation, and very few conse- 
quently were able to pay the rent demanded." On several 
occasions the Proprietors agreed to receive merchantable 
commodities in place of money,^ and upon one occasion 
they abated three years of rent on condition that the settlers 

^"Collections," I., 102. 

2 " Collections," I., 149; " North Carolina Colonial Records," I., 
555. Tlie Assembly had recognized the evil and, five years before, 
had passed an act for avoiding grants of land that remained un- 
occupied for two years, unless the grantee paid quit-rents thereon. 
" Statutes," n., 79; 102, § 15; 117; 135; Chalmers' " Opinions," II., 
44, 100. 

' " Collections," I., 155, 156, 158, 159, 167, 171, 190, 191, 285; H., 
231. Grants as before were allowed from 1713 to 1718. " Collec- 
tions," I., 162. In 1773, grants of land were again forbidden. 
" New York Colonial Documents," VIII., 357. 

*CarroU, II., 32; Rivers, "Sketch," 359, §22; " CoUections," I., 
113; " Statutes," II., 97, 100, §§ 1, 8. 

^ The statement m Grahame's " History of the United States," 
n., 129, that not one acre in a thousand was under cultivation, 
must be extravagant. 

« See, for example, the case in 1695. " Collections," I., 124, 136; 
" Statutes," II., 97, 98. 



68 Government of the Colony of South Carolina. [68 

fortify Charleston.'' But in spite of this the arrearages 
amounted to £2000 sterling in 1699, which gradually in- 
creased to £9000 in 1729.' The King, at the time of the 
purchase of the colony, very generously remitted the arrear- 
ages of quit-rents on condition that provision be made for 
their payment in the future/ 

An act was passed by the Assembly, in 1731, which was 
intended to settle the whole question/ The Auditor-Gen- 
eral, who had been appointed over all the colonies in 1715,^ 
was authorized to open an office in Charleston, where all 
deeds were to be registered. The registry was to describe 
lands by metes and bounds, give their location in county and 
parish, the rents payable, and to trace back the history of the 
deed to the original grantee. Rents were payable in procla- 
mation money, March 25 of each year, by the persons in 
whose names the lands stood in the registry. Neglect to 
pay for five years worked a forfeiture of the lands to the 
King. In addition to this registry in the office of the Audi- 
tor-General was the registry in the colonial registry of deeds. 
Registers had been appointed in the early history of the 
colony, but the work was performed by the Surveyor-Gen- 
eral or the Colonial Secretary until the close of the colonial 
period.^ 

1 In 1695. See " Statutes," II., 102-104; " Collections," I., 135, 139, 
140. 141. 

2 " CoUections," I., 148, 155, 167; CarroU, I., 274. At the close of 
the proprietary period, the quit-rents amounted to about £500 a 
year. See " New York Colonial Documents," IV., 612; " Report of 
the Board of Trade to the King," 126. 

' " Collections," II., 175, 177; Chalmers' " Revolt," U., 169; " Stat- 
utes," III., 289; 301, § 23. 

*" Statutes," III., 289-301. A subsequent act, passed in 1744, 
was practically a re-afflrmation of the act of 1731. " Statutes," 
in., 633-637. 

^"Collections," I., 223. 

® See Fundamental Constitutions, §§ 81-83; Sainsbury's " Calen- 
dars," ni., Nos. 247, 868, 870; IV., No. 582; " CoUections," I., 99, 
174; II., 275; Chalmers' " Opinions," I., 164; " Letter to Bern," 27; 
Carroll, IL, 221; " Statutes," II., 4; in., 296, § 18; 416. 



CHAPTER VI. 
The Parish. 

For forty years and more the entire management of colo- 
nial affairs was vested in the General Assembly. If a bridge 
were to be built, a road to be laid out, a public building or 
fort to be erected, a ferry to be established, creeks to be 
cleaned, canals to be cut, drains to be dug, pilot boats to be 
built, buoys to be placed in the harbor, or even local taxes 
to be raised, an act of the Assembly was passed ordering the 
same to be done and appointing a commission to supervise 
the work. Charleston, the only town of any importance in 
the colony, was governed by the Assembly. The records of 
the town contain no mention of Aldermen, Council, Select- 
men, Mayor or other local governing officials. Centraliza- 
tion was complete; local government was unknown.^ 

In 1704, an act was passed establishing the Church of 
England in the colony and dividing the colony into parishes, 
each to contain a church which was to be presided over by 
an Episcopal clergyman.'' The plan had reference to relig- 
ious worship only, and no thought seems to have been enter- 
tained of making the parish a local unit of government. But 
once established, the advantages arising from the parish sys- 
tem became so apparent that very early the parish became 
the unit of local government in South Carolina. The act of 
1704 proving unsatisfactory to the English government, it 
was repealed,^ and in 1706 another act was passed nearly 
identical with the former, with the objectionable clauses 

^See the "Statutes"; "Charleston Year Book," 1880, 254; 1881, 
326, 332. 
=> " Statutes," II., 236-245. 
3 " Collections," L, 152; " Statutes," II., 281. 



70 Government of the Colony of South Carolina, [70 

omitted or modified/ By this act the colony was divided 
into ten parishes/ which, by 1775, had increased, by the 
division of old parishes or the creation of new out of terri- 
tory unsettled in 1706, to twenty-four, all having equal 
rights, duties and privileges.^ 

As the parish was a purely ecclesiastical division organ- 
ized for the sole purpose of propagating the Episcopal 
religion, the officers placed over it were naturally only such 
as were necessary for an ecclesiastical organization: rector, 
churchwardens, vestrymen, sexton, clerk and register of 
births, marriages and deaths; and these remained, with the 
single addition of the overseers of the poor, the only parish 
officers during the colonial period. The duties of the rector, 
who was e^: officio a member of the vestry, remained of an 
ecclesiastical and religious character throughout the colonial 
period. All parish business was managed by two church- 
wardens and seven vestrymen, elected annually on Easter 
Monday in each parish by such conforming Episcopalians as 
were either freeholders or taxpayers in the parish. Vacancies 
arising in the vestry were filled at a special meeting of the 
parish, while vacancies among the wardens were filled by the 
vestry. The two bodies deliberated apart and not necessarily 
at the same time. The vestries held regular quarterly meet- 
ings, while the wardens met whenever they chose. Their 
duties consisted, at first, in paying parochial charges and in 
keeping all parish property in repair; but with the growth of 

^ " Statutes," II., 283-293. The act of 1706 was not an amend- 
atory act to that of 1704, as several writers seem to think. See 
further on this point: Carroll, I., 145-158; II., 429-444; De Foe, 
"Party Tyranny"; "Case of the Protestant Dissenters in Car- 
olina"; "Journal of the House of Lords," XVIII., 130b, 134a, 
143b, 144, 151. 

2 The act of 1704 had provided for six parishes only. See also 
" Statutes," IL, 328-330; 687, § 14. 

*The townships were promised by the King equal rights with 
the parishes as soon as they contained one hundred families, but 
the Assembly uniformly neglected to confer such rights until the 
inhabitants had adopted Episcopacy. See Carroll, I., 297; II., 124, 
220; Ramsay, I., 109. 



71] The Parish. 71 

parish functions their duties were greatly increased.^ The 
register was annually appointed by the vestry, took the cus- 
tomary oaths, kept records of vestry proceedings and of all 
births, christenings, marriages and burials.^ The duties of 
the clerk were to keep the parish records, and of the sexton 
to take care of the parish church and cemetery. Both were 
appointed by the vestry and served during pleasure.^ 

The care of the poor fell to the parishes after 171 2. Pre- 
vious to that time they had been under the care of a close 
board of five commissioners, appointed in the first instance 
by the Assembly.* After 171 2, the vestry of each parish 
annually appointed a Board of Overseers, consisting of two 
or more members, who, with the wardens, had the entire 
charge of the parish poor. A settlement in a parish was 
gained by a continuous residence there for three months," 
" as a native, householder, sojourner, apprentice or servant," 
unless possessing a home in another parish, and great care 
was taken to prevent paupers, or any who it was feared might 
become paupers, from obtaining a settlement' Until 1825, 
there was but one workhouse in South Carolina, and that 
was built at Charleston about the year 1740.^ In addition to 

'^ See §§ 2, 20, 21, 22, 23, 27, 28, 30, 31 of the act of 1704; §§ 28, 
29, 30, 31, 34, 35, 38, 39 of tlie act of 1706; "Statutes," n., 368, 
§§ 6, 7; 397, § 7. 

2 §§24, 25 (1704); §§32, 33 (1706). The Proprietors had desired 
to have a register in each seigniory, barony and colony, Funda- 
mental Constitutions, §§ 84, 87; but the rector at Charleston, ap- 
pointed in 1698, seems to have been the only register prior to 1706. 
" Statutes," n., 120, 121, 139, 215; " Collections," I., 144. 

^ §§ 28, 29 (1704); §§ 36, 37 (1706); " Statutes," H., 373, § 16. 

* The earnest act upon the subject was passed in 1694, and is lost. 
The act of 1696, supplemented by the act of 1698, continued in 
force until 1712. " Statutes," H., 78, 116, 135. For the act of 1712, 
which continued in effect with few and slight changes until 1783, 
Bee '* Statutes," II., 593-598. 

^ After 1768, twelve months, as in the other colonies. " Statutes," 
VII., 91, § 5. 

«See further, "Statutes," II., 117, §5; 136, §4; III., 491, §§4, 5; 
721, § 2; " Charleston Year Book," 1881, 333. 

' " Statutes," ni., 430, 480, 736; IV., 141; VI., 241, 242; VH., 90- 
92; " Charleston Year Book," 1881, 43, 44; 1887, 150; 1888, 98. 



72 Government of the Colony of South Carolina, [72 

aid granted by the parishes, there were three charitable socie- 
ties which gave aid to poor orphans, principally by educa- 
tion: the South Carolina Society, organized in 1738 at 
Charleston; the Winyaw Indigo Society, organized in 1755 
at Georgetown, and the Fellowship Society, organized in 
1762 at Charleston." 

The roads were, to a certain extent, under the control of 
the parishes. Before 1721, no new road was laid out except 
after the passage of a special act and the appointment by the 
Assembly of a Board of Commissioners, generally consisting 
of five members, to carry the act into effect.^ In 1721, the 
various acts relating to roads were repealed and a Highway 
act passed, intended to cover all roads in the colony.^ The 
colony was divided into thirty-three districts, and the roads 
in each were placed under the care of a commission, varying 
in number from three to eleven members each. In four 
cases the bounds of the districts coincided with those of 
parishes, but the majority of parishes were subdivided into 
two, three and even six divisions, while in five cases the 
duties of the commission consisted mainly in keeping creeks 
clean and in repair.* The members were all appointed in the 
first instance by the Assembly, and vacancies were filled by 
the remaining members, or by the Governor if the remaining 
members failed to fill the vacancy within a reasonable time. 
In no case were the members elected by the parish, as stated 
by some writers. Members were appointed or elected for 
life. Resignations were not allowed to be accepted until 
1 741, and then only after three years of service.^ Additional 
members were at times added by the Assembly to several of 

^ " Statutes," v., 183; VHI., 106, 107, 110-114, 192, 246, 255, 351, 
365. The Fellowship Society also maintained a hospital. " Rules 
of the Incorporated South Carolina Society," pp. vii, viii. 

2 See "Statutes," IX., 1-50. ^ " Statutes," IX., 49-57. 

* For later acts appointing commissioners to clear creeks and lay 
out drains see " Statutes," VII., 492-496, 506-508, 513-519; IX., 129, 

' " Statutes," IX., 129, § 8. 



73] The Parish, 73 

the boards/ and several new boards were appointed, with all 
the powers of the old, especially when new parishes were cre- 
ated/ When all the members of a board died, leaving no 
successors, the Assembly made entirely new appointments.^ 
The roads in Charleston were under the care of the Grov- 
ernor, Council and five other members until 1764, after 
which date they were placed under the care of a board 
appointed as in other parishes. 

In addition, there were a few other local officials in 
Charleston appointed, in the first instance, by the Assembly, 
with vacancies filled by the remaining members or by the 
Governor. The more prominent of these were the Fire 
Commissioners, whose duty was to see that all the inhabi- 
tants possessed ladders, fire-hooks, buckets, etc., ready for 
use in case of fire; a Sealer of Weights and Measures;* 
Gangers and Measurers;^ a Flour and Tobacco Inspector,^ 
and Packers, who examined all rice, beef, pork, tar, pitch, 
rosin and turpentine before exportation.' 

Finally, the parish became the unit of election of members 
to the Commons House of Assembly. Of the early elec- 
tions very little can be said beyond the fact that they took 
place at Charleston.^ An attempt, in 1683, to have half of 
the -members chosen at Charleston and the rest at Wilton 

1 See, for example, " Statutes," III., 222. § 2: IV.. 256, § 5: IX.. 
127, § 3. 

^ " Statutes," IV„ 9, § 8; IX., 127, § 3; 145, §§ 1, 12; 182, § 4. 

' " Statutes," IX., 162, § 1. 

* After 1693. " Statutes," II., 77, 96, 122, 186, 278, 346. 

"After 1710. "Statutes," HI., 347, §2; 500, §§10-14; 587; 690, 
§§14, 15; 751; IV., 47; 96; 207; 291, §§6-12; 540. After 1768, they 
were elected by the residents of Charleston. 

"After 1771. "Statutes," IV., 327-331. 

^ After 1693. " Statutes," II., 77, 96, 216, 264, 298, 615; III., 103, 
500, 587, 686-690, 751; IV., 47, 96, 207, 295, 333, 349, 382, 541. There 
were Packers in Georgetown and Port Royal, also, elected by the 
residents of the respective towns. 

^ The Fundamental Constitutions are singularly silent upon the 
question of elections. See § 75. 



74 Government of the Colony of South Carolina. [74 

failed/ Very little departure from the original system was 
made until 171 6, when the election act was passed, reference 
to which has already been made.'' The method of procedure 
as detailed by the election act and its successors was practi- 
cally the same. Forty days before the election, writs^ calling 
for the same were issued by the Governor and Council to the 
various churchwardens, who gave public notice of the time 
and place of the election.* The churchwardens had entire 
charge of the balloting. They were obliged to be present 
during the hours of voting, and were heavily fined for stuff- 
ing the ballot-box or opening ballots before the closing of 
the polls. Voters were exempt from arrest on civil process 
while on their way to or from the polling places and for 
forty-eight hours after the votes had been counted. Bribery 
and intimidation at the polls were severely punished, and, 
when done by the person elected, lost him his election. The 
qualifications of voters varied somewhat throughout the 
period, but in general it may be stated that a voter had to be 
a free white male Protestant, twenty-one years of age, a resi- 
dent of the colony for a certain period of time, and possess- 
ing fifty acres of land or its equivalent value in personalty. 
After 1745, voters were allowed to cast their votes either in 
the parish of residence or in which they held the required 
amount of property. Elections were conducted in a very 
simple manner. The balloting took place at the parish 
church. The ballots were prepared by the voters and de- 
posited by them in a ballot-box prepared for the purpose by 
the churchwardens. The polls were kept open for two days, 
when the votes were counted by the wardens and the suc- 
cessful candidates informed of their election.^ 

^Dalcho, 16; "Collections," L, 125. 

2 See "Statutes," IL, 73, 130, 249; "Collections," I., 130. See 
page 49. 

3 For tlie form, see " Collections," I., 289. 

* A copy of one of these notices is given in Gregg, 168. 
^ In addition to the acts of 1716, 1719 and 1721, see " Statutes," 
III., 657; IV., 99. 



75] The Parish, 75 

A few words on the subject of naturalization may not be 
out of place here. The rule in England had been the same 
as in other countries, — a man owed allegiance to the Crown 
in whose dominions he was born. Aliens were without 
rights, but, in time of peace, were tacitly allowed many 
rights of Englishmen. Parliament might naturalize for- 
eigners, which was generally done by means of special acts. 
Sailors, however, serving in the British navy or on board of 
British whaling vessels were generally allowed to become 
naturalized under certain conditions.^ The individual colo- 
nies likewise passed acts, conferring the rights of natural- 
born persons upon foreigners settling within their limits and 
complying with certain requirements. The occasion of the 
passage of naturalization acts in South Carolina was the 
presence of the French refugees, — quiet, law-abiding and 
very desirable citizens. The act of 1691 conferred upon the 
French and Swiss residents the same rights and privileges as 
were possessed by free-born South Carolinians.' This act 
was disallowed by the Proprietors, in common with other acts 
passed by SothelPs Assembly.^ At the earnest solicitation of 
the Proprietors, however, another act was passed, six years 
later, similar to that of 1691, allowing naturalization papers 
to be obtained by such applicants as had taken the oath of 
allegiance to the King.* This act, like its predecessor, ap- 
plied only to such alien Protestants as were at the time 
actual residents of the colony. In 1704, the act was ex- 
tended to include aliens settling in the colony in the future.^ 

^ See 6 Anne, c. 37, § 20; 13 Geo. II., c. 3, § 2; 22 Geo. II., c. 45; 
29 Geo. II., c. 5; 2 Geo. III., c. 25; 4 Geo. III., c. 22; 8 Geo. HI., 
c. 27, § 3; 13 Geo. III., c. 25; 14 Geo. in., c. 84; " Collections," 
n., 249. For other early English naturalization acts, see 7 Anne, 
c. 5, §§2, 3; 10 Anne, c. 5; 1 Geo. I., Stat. II., c. 29; 4 Geo. I., 
c. 21; 13 Geo. III., c. 21. 

^ " Statutes," II., 58-60. According to the Fundamental Consti- 
tutions, citizenship was to he gained hy merely signing the Grand 
Model. See § 118. 

^ " Collections," I., 128, 129. 

*" Statutes," II., 131-133; "Collections," I., 131, 141, 145. 

^ " Statutes," n., 251-253; III., 3, § 3; " Collections," I., 149. The 
statements of Daly in his monograph on " Naturalization," pp. 15, 
16, are somewhat mixed and inaccurate. 



76 Government of the Colony of South Carolina. [76 

But naturalization in one colony gave no rights in another/ 
In 1740, the British Parliament passed an act to obviate this 
difficulty, by conferring the rights of citizenship upon foreign 
Protestants who had resided for seven years in the colonies 
and had taken the various oaths prescribed by Parliament, 
thus rendering individual colonial acts unnecessary.'' 

According to the Fundamental Constitutions," incorpor- 
ated towns were to be governed by a mayor, twelve alder- 
men and twenty-four common councilmen. The Proprie- 
tors were to appoint the Mayor and Aldermen from the 
Council chosen by the householders. Aside from the parish, 
however, there was no trace of local government in South 
Carolina until after the close of the Revolutionary War. As 
early as 1694, the Proprietors had recommended the Gov- 
ernor to give a charter to the inhabitants of Charleston.* 
But no town during the colonial period was actually incor- 
porated.'* The interior of the colony, which was not em- 
braced within the limits of a parish, was absolutely without 
local government of any kind until 1785, when the State was 
subdivided into counties, principally for judicial purposes.** 
The parish system remained, however, in the lowlands until 
the reconstruction period, and even to-day several of the 
townships are known as parishes. 

^ Chalmers' " Opinions," I., 344. 

2 13 Geo. II., c. 27. See also 20 Geo. II., c. 44; 26 Geo. H., c. 26; 
27 Geo. II., c. 1; 13 Geo. IIL, c. 25. Baird's remarks in his 
" Huguenot Emigration to Ameiiea," II., 173-175, to the effect 
that the Crown refused to sanction colonial naturaUzation acts 
are misleading. Such acts were not disallowed until after the 
passage of the British colonial naturalization act of 1740. See 
Chalmers' "Opinions," I., 344; II., 123; "New York Colonial 
Documents," VIII., 402; " New Jersey Colonial Documents," X., 
412. 

^See §92. *" Collections," I., 137. 

"The act of the Assembly incorporating Charles City and Port 
in 1722 was disallowed. See " Collections," I., 158, 159, 265, 266, 
267, 272, 275, 277; IL, 155, 162; Chalmers' " Opinions," II., 53-56; 
Chalmers' " Revolt," II., 96. Charleston was not incorporated un- 
til 1783. See " Statutes," VII., 97. 

« " Statutes," IV., 661-666. 



CHAPTER VIL 
The Judiciary. 

By their charter, the Proprietors were empowered to estab- 
lish courts and forms of judicature, appoint judges, hold 
pleas, award process, and hear cases, civil and criminal. The 
system as outlined by them in the Fundamental Constitu- 
tions was very elaborate and was founded upon the subdi- 
visions of the county. Courts were to be erected in each 
seigniory, barony and manor, to be presided over by their 
proper lord, and also in the four precincts of the county, 
each to be presided over by a steward and four justices. All 
court officials were to possess certain property qualifications 
and to be residents of their respective judicial districts. Ap- 
peals were to be allowed in certain cases from the above 
courts to the county court, and from the latter to the Pro- 
prietors in all criminal cases, and in civil cases when the 
matter in dispute exceeded £200 in value or related to title 
to lands."^ 

Such an elaborate system, however, could not be put into 
operation until the colony had been sufficiently well settled. 
Hence no attempt was made to establish a judicial system 
until the division of the colony into counties in 1682, all 
judicial business being attended to by the Governor and 
Council.^ In that year a court was erected at Charleston for 
Berkeley county, and the intention was to erect courts in the 
other counties as soon as they were sufficiently populated to 
warrant it.' But no courts were ever erected in them, and 
the court at Charleston remained practically the only court 
of record for civil business in South Carolina until the eve 

^ Fundamental CJonstitutions, §§ 16, 61-63. 

2 Rivers, " Sketch," 348, 352, 354. 

3 Rivers, " Chapter," 62; " CoUections," I., 87, 134. 



78 Government of the Colony of South Carolina, [78 

of the Revolutionary War/ The court claimed all the 
powers, rights and privileges exercised by the Court of 
Common Pleas at Westminster. Sessions were held quar- 
terly, and all writs and process ran in the name of the Pro- 
prietors, or King after 1719.^ 

The principal judicial officials were the Justices, Clerk, 
Provost Marshal, and Attorney-General. The Proprietors 
had intended to have a Chief Justice and four Associate Jus- 
tices preside over each county court, and the first appoint- 
ments were made in accordance with this intention." But the 
small amount of business rendered so many Justices unneces- 
sary, and from 1694 until 1732 a Chief Justice alone was 
appointed.* After the reorganization of the judicial system 
in 1 73 1, two Associate Justices were appointed, to whom, in 
1744, was given the power to hold court in the absence of 
the Chief Justice."* Appointments were made by the Gov- 
ernors and removals were frequently made to create vacan- 
cies for favorites.^ The salary of the Chief Justice was £60 
a year during the proprietary period and iioo during the 
royal. The Assistant Justices served without pay.^ The 
duties of the Clerk were to keep records of all processes and 
actions tried in the court. Under the Proprietors the duties 
were performed by the Secretary of the colony; under the 
King, by a patentee of the Crown.^ The Provost-Marshal 

1 Carroll, n., 221. 

2 " Statutes," VIL, 190, §2; 186, §8; 189, §1; 190, §6; HI., 324, 
§4. See also Stokes, 157; " OoUections," II., 172; Pownall (1st ed.), 
75. 

^ Fundamental Constitutions, § 61; " Collections," I., 116, 130, 131, 
134; Rivers, " Chapter," 61, § 11. 

* " Collections," I., 126, 156, 197; n., 129, 275; Stokes, 157. 

=^ " Collections," IL, 186; "Statutes," III., 326, §7; 632, §7; 
Eamsay, 11., 154. 

« " Collections," I., 90, 92, 130, 131, 134; IL, 273, 306, 309; " Nortli 
Carolina Colonial Records," I., 705; Rivers, '* Chapter," 61, §11; 
Stokes, 158; CarroU, 11., 427. For cases of appointment for life, 
see " Collections," I., 127, 246, 247, 250. The Assembly never ap- 
pointed the Justices as stated in the " Statutes," I., 430. 

^"Collections," I., 145, 155; "Statutes," III., 317, §32; 448, §32. 

« " Collections," I., 92, 112, 117, 174, 250; Rivers, " Chapter," 62, 
§ 13; " Statutes," HI., 275, § 4; Grimke, 271, § 20. 



79] The Judiciary, 79 

was the general executive officer of the courts, possessing 
the same powers and liabilities as the English sheriff, to 
whose duties his were similar/ During the proprietary 
period he was appointed by the Governor, and Governors 
were occasionally known to sell the office to the highest 
bidder. During the royal period, however, the office was 
held by a patentee of the Crown, the same person holding 
the office of Clerk and Provost-Marshal and performing his 
duties by deputy until 1769, when the colony purchased the 
right to appoint its own Clerk and Provost-Marshal/ The 
Marshal was also the public jail-keeper, and his house, or his 
deputy's, remained the colonial prison until 1770, when a 
jail was erected.* An Attorney-General was also appointed, 
generally by the Governor, to prosecute offenders against 
the law."* 

Criminal jurisdiction was retained by the Governor and 
Council until 1701, when a criminal court was established at 
Charleston, under the name of " Court of General Sessions 
of the Peace, Oyer and Terminer, Assize and General Gaol 
Delivery.'' Its jurisdiction was practically the same as that 
possessed by similar courts in England. The officials con- 
nected with the Court of Common Pleas held similar posi- 
tions in the Court of General Sessions, and the two courts 
were managed as two divisions of the same court.^ 

^Rivers, "Chapter," 62, §14; 80, §51; "Statutes,'' IL, 611-613, 
682; III., 85; 117, § 1; 118, % 4; 186, § 8; 190, § 5; 275, § 4; 284, §§ 37, 
38; VII., 188, §12; 190, §§3-5; "Collections," II., 178; "Letter to 
Bern," 26; Chalmers' " Opinions," I., 145. 

2 " Collections," I., 87, 174, 187, 237, 250; II., 131, 191; III., 323. 
The correspondence relating to the sale is given in Weston, 106 et 
seq. See also " CoUections," I., 163, 164, 186, 187, 233; Redington's 
" Calendars," n., No. 528. He was paid by fees. " Statutes," III.. 
415, 422. 

^ " Statutes," II., 166, 167, 415; III., 284, 638; IV., 323-325; VII., 
202; '• CoUections," III., 323. See also " Statutes," II., 425, 453. 

* " Collections," I., 130, 136, 144, 153, 155, 156; IL, 129, 273; Wes- 
ton, 201. 

' " Statutes," IL, 167, § 3; 286, § 45; in., 97; 236; 268; 282, § 30-32; 
543, § 5; VII., 194, § 1; Rivers, " Chapter," 62, §§ 17, 18; Stokes, 158. 



80 Government of the Colony of South Carolina. [80 

In addition to the officials already referred to, there were 
Justices of the Peace and Constables, The former were ap- 
pointed by the Governor. Their duties were many and 
minor in character. They could commit trespassers to jail, 
admit prisoners to bail, give certificates of ownership of 
horses and the like. They also had jurisdiction in petty 
cases under forty shillings, in imitation of the London Court 
of Conscience, tried offenders against the Sunday law, and 
settled claims for damages caused by the erection of dams. 
They were paid by fees.^ The Constables likewise date back 
to 1685, if not earlier. They were appointed by the Justices 
of the Court of General Sessions. Their number was large, 
how large it is impossible to state. Their duties were of a 
minor and miscellaneous character; they served writs in 
small cases, conveyed prisoners to jail, whipped negroes, 
summoned jurors, collected several local taxes, and notified 
the Court of General Sessions of all wrong actions coming 
to their notice.^ As in other colonies, the number of law- 
yers was very small. Fifty-eight were admitted to the bar 
between the years 1748 and 1775. The records of those 
admitted before that date are lost.^ 

The jury system in South Carolina was in many respects 
unique. Jurors were not returned by the Sheriff, as else- 
where. Every three years lists of jurymen were prepared 
by the Chief Justice, Coroner and Treasurer. All free- 
holders paying a minimum tax of £2 were liable to service as 

^ " Statutes," II., 1, 27, ,28, 34, 47, 74, 289, 897, 443-446, 452, 454, 
482, 598; III., 99, 131, 139, 268, 603, 609, 705; IV., 177. 184; Grimkg, 
213; Chalmers' "Opinions," II., 161; Stokes, 158; Weston, 81; Car- 
roll, II., 221; " Collections," IL, 172; 3 Jac. I., c. 15; 6 Edw. I., 
c. 8. 

' " Statutes," II., 27, 34, 47, 74, 94, 96, 117, 138, 183, 208, 270, 278, 
287, 299, 332, 361, 388, 594, 598, 629; III., 99, 283, 555, 586, 638, 
751; IV., 47, 96, 207, 294, 333, 349, 382, 540; VII., 2, 403. " CoUec- 
tions," I., 186; " South Carolina and American General Gazette," 
March 11, 1768. 

^See "Statutes," n., 447; VII., 173, §29; Ramsay, n., 159; 
Grimk6, 271, § 15. By the Fundamental Constitutions, § 70, no one 
was to be allowed to plead the cause of another for money. 



81] ' The Judiciary, 81 

petit jurors, while those paying a tax of £5 or more were 
liable to service as grand jurors. The names of all were 
written upon separate pieces of paper and placed in a box 
prepared for this purpose. This box contained six compart- 
ments : into the first were placed the names of those liable to 
grand jury service; into the third, those liable to petit jury 
service; into the fifth, the names of those residing in Charles- 
ton. The box had three locks, with three dififerent keys, one 
each in the possession of the Chief Justice, Coroner, and 
Treasurer, and could be opened only in the presence of all 
three. As a general rule, jurors were drawn at Charleston 
during the session of the court preceding that in which they 
were to serve. Thirty slips were drawn^ from the first 
compartment for grand jury service, forty-eight from the 
third for criminal jury service, thirty more from the third 
for civil jury service, and thirty from the fifth' to serve 
at special courts. The names of the persons drawn were 
entered in the session book by the clerk, and the slips were 
placed in the second, fourth and sixth compartments respec- 
tively. This process was continued until all the slips had 
been withdrawn from the odd-numbered compartments and 
placed in the even, when it was begun over again. Those 
whose names had been drawn were summoned by the Pro- 
vost-Marshal to appear at the next session of the court. Of 
those appearing, twenty-three in the case of the grand jury 
and twelve in the case of the petit were drawn for actual ser- 
vice. The grand jurors were sworn by the clerk of the 
court and then retired to examine the bills filed by the At- 
torney-General. These were indorsed good or bad accord- 
ing as they were found against or for the prisoner, and were 
returned to the clerk of the court. The duties of the petit 
jury were the same as to-day, to decide the facts in the case 
presented for their consideration. In criminal cases a pris- 
oner was allowed to except against twenty jurors. Surgeons 
and butchers were forbidden to sit on the jury in criminal 

^ The custom was to have the drawing done by the first boy who 
appeared after the box was opened. See Carroll, I., 105. 



82 Government of the Colony of South Carolina, [82 

cases. Others exempt from jury service of all kinds were: 
members of the Council and of the Assembly, Justices, As- 
sistant Justices, and all other court officials and such persons 
as were exempt by the laws of England. This description 
of the jury system is taken from the jury act of 1731,^ which 
continued in force, with a very few slight changes, through- 
out the remainder of the colonial period.^ The earlier acts 
are lost,^ but the system as above outlined was in use before 
1 710, and is said to have originated with Gov. Smith in 
1693.* 

In the first years of the colony, when the Governor and 
Council possessed jurisdiction in all cases, appeals were 
unnecessary. When courts of law were created, the right of 
appeal to the Governor in Council was reserved. During 
the proprietary period appeals seem to have been allowed 
in all cases, but during the royal period they were allowed, 
with a few exceptions, only when the matter in dispute ex- 
ceeded £300 sterling in value. In this appellate court the 
Governor sat as Chief Justice, the Council as Associate Jus- 
tices, and the colonial Secretary as Clerk. Writs were served 
by the Provost-Marshal.^ Appeals were furthermore al- 
lowed from the Governor in Council to the Proprietors or 
King in Council. Under the Proprietors, all cases were 
appealable; under the King, only those where the matter in 

1 " Statutes," III., 274-282. 

2 "Statutes," in., 543, §4; 631, §3; 728, §3; IV., 43, §3; VII., 
196, § 6. For the changes, see " Statutes," HI., 282, § 5; 323, §3; 
554, §§1-5; 630, §§3-6; 728, §3; IV., 43, §3; 195, § 3; VII., 187, 
§11; 203, §15. 

^ Passed in 1695, 1697, 1702, 1704 and 1712. " Statutes," II., 96, 
130, 185, 256, 378. 

* " Letter to Bern," 23, 24; " Harper's Monthly," December, 1875. 
p, 17. The act of 1692, the first jury act passed in South Carolina, 
was disallowed by the Proprietors. " Statutes," n., 76; Rivers, 
" Sketch," 436-439. See further, Weston, 203-205; Fundamental 
Constitutions, §§ 66-69. 

^ Rivers, " Chapter," 62, §§ 15, 16; 81, § 53; " CoUections," I., 171; 
Stokes, 184, 223; " New Jersey Colonial Documents," VIII., Pt. 1, 
188-189. 



83] The Judiciary, 83 

dispute exceeded £500 sterling/ The law applied by these 
courts was, generally speaking, the common law of England, 
the first settlers being supposed to carry with them the under- 
lying principles of EngHsh law and customs in existence at 
the time of their departure. To make this sure, the Assem- 
bly, in 1 712, enacted that the English common law, where 
not altered by nor inconsistent with the customs and laws of 
the colony, was to be in force in South Carolina, except the 
ancient tenures and the ecclesiastical law.^ 

Such was the composition of the judicial system of South 
Carolina during the greater part of the colonial period. 
There was considerable dissatisfaction with the system, and 
several efforts were made to improve it, especially in 1721,^ 
Five precinct courts were then established: at Waccamaw, 
Wando, Echaw, Wilton, and Beaufort, each presided over by 
five Justices of the Peace, appointed by the Governor. The 
jurisdiction of the courts was somewhat extended, including 
all criminal actions not extending to life or limb, and all civil 
actions up to £100 sterling. In addition, the court heard all 
actions relating to violations of the slave code, punished 
obstinate and incorrigible servants, granted and revoked 
liquor licenses, heard questions relating to wills and admin- 
istration, had charge of orphans, compelled executors to 
account, and examined the accounts of the churchwardens 
and overseers of the poor. Appeals were allowed under cer- 
tain restrictions to the Court of Common Pleas at Charles- 
ton. The procedure was practically the same as in the 
Charleston court. It was intended to build courthouses, 
prisons and inns in each district. But for some reason the 

^ " Collections," I., 205, 225; " North Carolina Colonial Records," 
II., 161; " New Jersey Colonial Documents," VIII., Pt. 1, 189-190; 
Fundamental Constitutions, § 65. 

2 " Statutes," II., 413, § 5. See also " Collections," I., 131, 132; 
Chalmers' "Opinions," I., 195, 197, 220; II., 202; Forsyth's "Opin- 
ions," pp. 1, '2; "Journals of Congress," I., 27-31; Daws v. Pindar, 
2 Modem Reports, 45; Blankard v. Galdy, 2 Salkeld's Reports, 
411; Rex v. Vaughan, 4 Burrows' Reports, 2494, at p. 2500; Gor- 
don V. Lowther, 2 Lord Raymond's Reports, 1447. 

^ " Statutes," II., 09; VII., 166-183; Chalmers' " Opinions," I., 355. 



84 Government of the Colony of South Carolina. [84 

precinct court system proved unpopular and soon fell into 
disuse/ 

Until the passage of the Circuit Court act in 1769, there- 
fore, all court business was transacted at Charleston. The 
principal reason for the passage of the act was the fact that 
the new settlers in the " back country " from Pennsylvania 
and Virginia needed protection from the freebooters who 
were overrunning the territory. The first act was passed in 
1768. Its disallowance by the Crown because of certain 
provisions which it contained was followed by the passage of 
a similar act the following year, with the objectionable clauses 
omitted/ Semi-annual sessions of the court were ordered to 
be held at Orangeburgh, Camden, Ninety-Six, Cheraws, 
Georgetown and Beaufort, to hear all actions, civil and crimi- 
nal. The Justices of the courts at Charleston sat also at the 
sessions of the Circuit courts. Writs and process issued 
from and were returnable to the Court of Common Pleas at 
Charleston, leaving only the trial to be conducted at the 
Circuit court. Circuit Sheriffs and Clerks were appointed by 
the Governor. The procedure in other respects was practi- 
cally the same as in the Charleston court.^ 

There yet remain to be mentioned the courts of Chancery, 
Admiralty, the Ordinary, and the Coroner. It was the inten- 
tion to have a Coroner in each county, but there seems 
never to have been a Coroner in the colonial days outside of 
Charleston. He is first mentioned in 1685, but his duties 

^ A supplemental act passed in 1727 was disallowed by the King. 
The act of 1721 was not expressly repealed until 1759, although 
obsolete certainly by 1730. "Statutes," III., 273, 287; IV., 76; 
" Collections," II., 119, 132. 

2 For the approval, see ''Collections," II., 191, 192. Unfortun- 
ately, the act inserted in the " Statutes," VII., 197-204, is the dis- 
allowed act of 1768; the approved act of 1769 is inserted in Judge 
Grimkg's *' PubUc Laws," 268-272, although in a somewhat muti- 
lated condition. See Redington's " Calendars," III., No. 1196. 

^ See also " Statutes," IV., 325, § 10. The salaries were increased 
as follows: The Chief Justice was granted an annual salary of 
£500; Assistant Justices, £300; Attorney-General, £200; Clerk of 
the Court of Common Pleas, £300; all in sterling. 



85] The Judiciary, 85 

were not fully defined until 1706/ He was appointed by the 
Governor, and his duties consisted mainly in examining 
into the cause of violent and sudden deaths. His court was 
held whenever and wherever he pleased. All testimony was 
given in writing, as well as the verdict of the jury, and the 
Coroner reported the result to the next Court of General 
Sessions. 

The Governor was Ordinary of the colony, and as such 
had the right to collate to benefices and grant probate of 
wills and letters of administration. The right to collate to 
benefices was never exercised in South Carolina.'' Wills 
were proved by an oath before the Ordiijary that the docu- 
ment was the last will of the deceased.^ Administration was 
granted only after the issue of a citation which had been read 
in church by the minister on the Sunday preceding the 
granting of administration. Administration granted in one 
colony did not extend to another, nor to England; nor did 
administration granted in England extend to the colonies in 
case of realty. Personalty was distributed according to the 
law of the deceased's domicil; but if the deceased died intes- 
tate in the colonies, leaving personalty in England, adminis- 
tration was granted in England, although his domicil were 
in the colony. Records of probate of wills and granting of 
administration were kept by the Secretary of the colony.* 
All ecclesiastical questions were referred to the Bishop of 
London, or were heard by his commissary in South Caro- 
lina. 

Chancery jurisdiction seems to have existed in South 

^ " Statutes," II., 6, 269, 482; VII., 181. §§ 6, 7. 

' " Statutes," n., 438, 440, 466-470, 523; " OoUections," II., 303; 
Stokes, 159, 184, 185. 

' The Proprietors appointed a special official to grant probate of 
wills and administration. " Collections," I., 157, 185; II., 178; 
Stokes, 203. 

* Stokes, 211; Chalmers' "Opinions," I., 28, 29; Forsyth's "Opin- 
ions," 45; " Letter to Bern," 27; Pipon v. Pipon, Ambler's Reports, 
25; Burn v. Cole, Ambler's Reports, 416; Atkins v. Smith, 2 At- 
kins' Reports, 63. 



86 Government of the Colony of South Carolina. [86 

Carolina upon the same precarious footing that it existed in 
the other colonies. There is no trace of the assent of the 
Crown to the establishment of any Court of Chancery in 
South Carolina. Nevertheless, the jurisdiction was exer- 
cised in the colony from an early day.^ The Proprietors 
formally appointed the Governor and Council a Court of 
Chancery as early as 1691, and the Assembly recognized 
this appointment in the year 1700.'' The Governor acted as 
Chancellor, the Councillors as Assistants, and the Secretary 
of the colony as Register or Clerk. The court sat quarterly, 
and heard cases similar to those heard in the English Court 
of Chancery. Appeal was allowed to the King in Council 
when the matter in dispute exceeded i300 sterling in value.^ 
The question of admiralty jurisdiction has been a trouble- 
some one to describe, but it becomes comparatively simple 
when the fact is borne in mind that there were two sets of 
Admiralty courts in the colonies during the greater part of 
the colonial period, and that at one time there were three: 
Colonial Courts of Admiralty, English Courts of Vice-Ad- 
miralty, and the Court of Vice-Admiralty over all America. 
The various charters granted by the Crown in the seven- 
teenth century included the land, coast, bays and inland 
waters from the Atlantic ocean westwards. Thus the ad- 
miralty jurisdiction of the colonies was very limited, being 
confined to acts committed at the mouths of rivers or at sea 
near the coast,'' and few colonies supported special courts of 
Admiralty, the jurisdiction being placed generally in the 
hands of the Governor and Council,^ or, as in South Caro- 

^ Chalmers' " Opinions," I., 182; Keath, "A Collection of Papers," 
179. 

2 Rivers, " Chapter," 62, § 16; " North Carolina Colonial Records," 
I., 435; II., 632; " Statutes," X., Appendix, p. 6. 

^ For the acts relating to the colonial Court of Chancery, 
see " Statutes," II., 414, §5; III., 324, §5; VII., 208-211. See also 
" Collections," II., 295; Stokes, 184, 194; Carroll, n., 155, 220, 221. 

*" Statutes," n., 446, 447; Stokes, 161, 162; " CoUections," II., 
172; Douglass' " Summary," I., 216; Sainsbury's " Calendars," IV., 
972. 

^ See Chalmers' " Opinions," II., 227. 



87] The Judiciary. 87 

lina, in the hands of the regular judicial tribunals/ The 
early intention of the English government seems to have 
been to extend the jurisdiction of these colonial courts of 
Admiralty, and violations of the provisions of the navigation 
acts were at first directed to be punished in such courts. As 
it became more and more evident that the navigation acts 
could not be enforced when offenders were tried before juries 
who had themselves been guilty of the same act as the 
accused, it was decided to establish in each colony branches 
of the English High Court of Admiralty.^ The establish- 
ment of these courts of Vice- Admiralty rendered the colonial 
courts of Admiralty superfluous, and the latter very gen- 
erally disappeared before the close of the colonial period. 

The first Court of Vice-Admiralty in South Carolina was 
established in 1697.^ During the proprietary period the 
Judge of Vice-Admiralty was generally appointed by the 
Proprietors through the Governor, subject to the approval 
of the English Commissioners of Admiralty; during the 
royal period the Lords Commissioners of Admiralty ap- 
pointed each Governor a Vice-Admiral in his colony. The 
Governor himself, however, seldom sat, but generally ap- 
pointed a Judge to sit for him in this court. He also 
appointed the other officers of the court: Register or Clerk, 
Marshal or Sherifif, and Advocate-General or prosecuting 
officer.* The jurisdiction of the court was similar to that of 
the English High Court of Admiralty, and included mari- 
time causes, cases of prizes taken in war, and violations of the 
navigation acts, the last being concurrent with the earlier 
colonial courts of Admiralty, as before stated.'' Appeals were 

^ " New Jersey Colonial Documents," II., 133-134. 

=^ " Collections," I., 211. 

3 " Collections," I., 197; "North Caroluia Colonial Records," L, 
471, 473, 490. 

^ '* Collections," I., 153, 178, 207; II., 207, 273, 276; " North Caro- 
Ima Colonial Records," I., 389, 490; Rivers, "Chapter," 83, §61; 
" Statutes," in., 420; Carroll, I., 359; IL, 221; Stokes, 166-176, 184, 
233. 

' Stokes, 167-172, 233, 270; Chalmers' " Opinions," II., 188-196; 
Forsyth's " Opmions," 91-93; Chahners' " Revolt," I., 272, 275, 301. 



88 Government of the Colony of South Carolina. [88 

allowed direct to the English High Court of Admiralty, 
except cases of prizes taken in war, which lay to commis- 
sioners especially appointed for this purpose/ There were 
two methods of trying pirates: by the first, the offender was 
tried before a jury of twelve, the court consisting of the 
Admiral or Vice-Admiral and two or three persons especi- 
ally commissioned by the King for this purpose, the trial 
being conducted as at common law. By the second method, 
the Vice-Admiral or any admiralty official in the colony 
could of his own motion summon seven substantial citizens 
to act as a court, hear the evidence, and decide the case by a 
majority vote, even sentencing the pirate to death. The 
first method was adopted in England in 1535, the second in 
1700, and both methods were early extended to the colonies.'^ 
It has already been stated that violations of the navigation 
acts were tried before either court of admiralty at the option 
of the prosecutor. The fact that juries failed to convict, 
even in the clearest cases of smuggling, led prosecutors to 
ignore the colonial courts of Admiralty and to bring their 
suits in the courts of Vice-Admiralty, where all cases were 
tried without a jury.^ The officers of the Vice- Admiralty 
courts were frequently colonial residents and averse to con- 
victing their fellow-citizens of smuggling. Hence it became 
evident to the English government in 1763, when duty acts 

^Stokes, 175; Chalmers' "Opinions," IL, 227, 228; Forsyth's 
" Opinions," 377; Jameson's " Essays," p. 14; 17 Geo. II., c. 34, 
§§ 5, 8, 9; 22 Geo. n., c. 3; 29 Geo. IL, c. 34, §§ 5, 8, 9. 

^27 Hen. VIIL, c. 4; 28 Hen. VHL, c. 15; 11 and 12 W. IH., 
c. 7; 4 Geo. I., c. 11, §7; 6 Geo. I., c. 19, §3; 8 Geo. I., e. 24; 18 
Geo. n., c. 30; " Collections," I., 223; II., 263, 276; Rivers, " Chap- 
ter," 82, § 56. Com"ts-martial also came mider the supervision 
of the Admiralty courts. See, for example, 22 Geo. H., c. 33, 
§§6-19; 29 Geo. IL, c. 27; 30 Geo. IL, c. 11, §§2. 6. 7; 31 Geo. IL, 
c. 6. §§ 2, 6, 7; 32 Geo. H., c. 0; 33 Geo. IL, c. 8; 4 Geo. m.. c. 8. 

^"Collections," L, 154, 218; "Journals of the House of Com- 
mons," Xin., 502-505. As an exhibition of the feeling of the As- 
sembly upon the question of smuggling, see " Statutes," IL, 167- 
173, where prosecutors were obliged to give bonds for £50 to pay 
costs in case the accused was declared innocent. The act was of 
course disallowed by the Board of Trade. " Collections," I., 219. 



89] The Judiciary, 89 

were passed and an energetic attempt was made to enforce 
the navigation acts, that some new kind of machinery must 
be devised if the acts were to be enforced. As a result, a 
third court was created, known as the " Court of Vice- Admir- 
alty over all America," before which all violations 3f the 
navigation acts were to be tried. The history of the court 
is very obscure. It was located at Halifax, as it was thought 
that more satisfactory verdicts could be obtained by its 
establishment in a territory uninfluenced by the traditions of 
the older possessions. Furthermore, the judge and other 
officials of the court were appointed by the Lords Commis- 
sioners of Admiralty directly and were sent over from Eng- 
land. The court was actually constituted and opened for 
business in 1764. The result was a strong protest from 
every colony against the injustice of a system which per- 
mitted a prosecutor to call an accused from Georgia to Hali- 
fax to defend himself against an unjust charge. Hence 
within a year from the time of establishing the court the 
Lords Commissioners of the Treasury requested its removal 
from Halifax to Boston and the establishment of two other 
similar courts, — one at Philadelphia, the other at Charleston. 
The impracticability and uselessness of the whole scheme 
soon became apparent, and the jurisdiction of the court was 
transferred to the old courts of VicerAdmiralty, while the 
new court fell speedily into disuse, although not formally 
abolished.^ 

These courts of Vice-Admiralty in each colony continued 
in use until the outbreak of the Revolution, when they sud- 
denly collapsed because of their entire dependenc-e upon the 
mother-country. Thereupon, November 25, 1775, the Con- 

M Geo. III., c. 15, §41; 8 Geo. ni., c. 22; "Aimual 
Register," 1774, p. [216, For reference to the documents, see 
" Journals of the House of Commons," XXX., 508, 591. See also 
"South Carolina Gazette," June 9, 1766, p. 4. A sketch of the 
court is given in Tuttle's "Historical Papers," 271-273, reprinted 
from " Mass. Historical Society, Proceedings," XVII., 291-293. See 
also Washburn's "Judicial History of Massachusetts," 175. At 
the same time, appeals were allowed from colonial courts of Ad- 
miralty to colonial courts of Vice-Admiralty. 



90 Government of the Colony of South Carolina. [90 

tinental Congress recommended the re-establishment in each 
colony of the original Courts of Admiralty, allowing appeals 
to Congress under certain restrictions. In accordance with 
this recommendation, Admiralty courts were re-established 
in each of the colonies by act of the various Assemblies, but 
provision was generally made, as in South Carolina, for a jury 
trial. The appeals to Congress were referred to a standing 
committee on appeals until the ratification of the Articles of 
Confederation, when a regular Court of Appeals was estab- 
lished, with three judges, and called the " Court of Appeals 
in Cases of Capture." The end of the war rendered its fur- 
ther existence unnecessary.'' 

^ See Bancroft Davis, " The Committees of the Continental Con- 
gress"; Jameson's "Essays," No. 1; "Papers of the American 
Historical Association," III., 383-392; " Statutes," IV., 348. 



CHAPTER VIII. 
Militia. 

The scattered condition of the settlers, living in the midst 
of enemies-^negroes and Spaniards as well as Indians — 
made it necessary for them to be organized upon a military- 
basis. As to the form of the organization in the early years 
of the colony, it is now impossible to speak with accuracy, 
since none of the militia acts passed prior to 1703 are in a 
legible condition. That the Assembly devoted considerable 
time to the subject is evidenced by the fact that thirteen acts 
relating to the militia were passed between the years 1682 
and 1698."^ The form was evidently settled by 1700, since 
the acts of the eighteenth century vary but little from one 
another.^ According to these acts, the militia consisted of 
all the white males in the colony between sixteen and sixty 
years of age: merchants, tradesmen, planters and servants;^ 
but the governing and professional classes,* generally speak- 
ing, were exempt from military service, except in time of 
alarm. Each one furnished his own arms and accoutre- 

1 " Statutes," II., 1, 40, 63, 77, 94, 96, 121, 124, 135, 139, 182; VII., 
12; IX., 617. 

=^ Militia acts were passed in the years 1703, 1707, 1721, 1734, 
1738, 1739, 1747 and 1755, of wliich the last two remained in force 
until 1783. See " Statutes," II., 278, 350, 604, 618, 361; in., 221, 
250, 270, 326, 373, 487, 587, 646; IV., 16, 17, 46, 95, 207, 294, 332, 
349, 350, 383; IX., 617-663. 

^ White servants were temporarily exempted in 1744. " Stat- 
utes," III., 629, §28. 

* Members and officers of the Council and of the Assembly, ju- 
dicial, customs and administrative officials, the clergy, pilots, ferry- 
men, strangers who had resided in the colony for less than three 
months, and servants for six months after completing their term 
of service. 



92 Government of the Colony of South Carolina, [92 

ments/ which had to be kept in the house ready for use in 
case of emergency, and were inspected by the officers of the 
company six times a year. 

The inhabitants of the parishes and townships were formed 
into companies, each parish having generally one or two 
companies, varying in size/ The Governor commissioned 
the captains of the various companies, and each captain 
appointed two sergeants' and a corporal for his company. 
The companies of the different counties were formed into 
regiments, varying in number according to the population^* 
The regimental officers^colonel, lieutenant-colonel, major 
and adjutant — were commissioned by the Governor," who 
was the commander-in-chief of all the forces in the colony." 
Each company was drilled six times a year."^ Whenever 
three or more companies happened to be drilling upon the 
same day within six miles of one another, the colonel of the 
regiment was allowed to assemble them together and train 
them as a battalion. There was also held once a year a gen- 
eral muster of all the companies in a regiment. As the offi- 

^ Gun, cover for the lock, cartridge box, twenty cartridges, belt, 
ball of wax, worm, wire, four flints, sword, bayonet or hatcbet, 
powder, bullets, powder horn and shot pouch. 

2 In 1671, the number of men in the mihtia was 150, Sainsbury's 
"Calendars," III., No. 472; in 1699, 1500, " CoUections," I., 210; 
in 1708, 950, Rivers, " Sketch," 232, 233; in 1715, 1500, " CoUec- 
tions," ni., 232; in 1719, 2000, "Historical Manuscripts Commis- 
sion," 11th Report, Appendix, Part IV., 255; in 1720, 1600, Rivers, 
" Chapter," 92; in 1721, 2000, " Report of the Board of Trade to 
the King," 117; in 1742, 4000, " Collections," III., 289; m 1763, 7000, 
CarroU, II., 479; in 1770, 8000, Weston, 202; in 1773, 13,000, "Am- 
erican and West Indian Gazetteer," 1778, art. Carolina. 

' One, before 1739. 

*In 1708, there were two regiments of militia; in 1774, twelve. 
Rivers, "Sketch," 232; Weston, 202; Drayton's "Memoirs," I., 
352, 353. 

^ See also Carroll, I., 508; II., 221; Weston, 81; Rivers, " Chapter," 
65, 82. 

« Stokes, 185; Rivers, " Chapter," 65; " Collections," I., 87; " North 
Carolina Colonial Records," I., 177; Sainsbury's "Calendars," 
III.. No. 87. 

^ Notice of the muster was given in the earUer period by beat of 
drum; in the later, generally by an advertisement in the Gazette. 



93] Militia, 93 

cers of each regiment prescribed such mihtary exercises as 
they saw fit, the confusion resulting when two regiments 
attempted to drill together can be better imagined than 
described/ 

The statement has already been made that the members 
of the Council and Assembly were exempt from militia ser- 
vice. Until 1747, however, they were obliged to appear on 
horse and properly armed in time of alarm. After that year 
they were relieved from further service because of the for- 
mation of troops of horse. When the first company of 
cavalry was formed is not stated,^ but there were two, if not 
more, in existence as early as 1740.^ The members were 
exempt from service in the foot companies, but were obliged 
to attend four musters a year at Charleston, with horse and 
proper arms and ammunition provided at their own expense. 
For several years the inhabitants of Charleston had been 
drilled in the use of cannon at the batteries of Charleston 
and at Fort Johnston on James Island. In connection with 
the Charleston regiment, an artillery company was formed, 
March ist, 1756. After 1760, the members provided them- 
selves with uniforms, arms and accoutrements, while the 
colony furnished them with an artillery chest and carriages 
for ammunition and powder. The company was officered 
by a captain, captain-lieutenant, two lieutenants, three lieu- 
tenant-fire-workers and four sergeants, while the one hun- 
dred privates were classed as bombardiers, gunners and 
matrosses, serving in turn. The company was accustomed 
to drill from eight to twelve times a year. A second com- 
pany was formed in 1775, when war^was expected with Eng- 
land. The two companies were formed into a battalion and 
placed under the command of a major.* In addition, there 

^ Drayton's " View," 103. 

2 The acts of 1703, 1707, 1721 and 1734 gave tlie Governor per- 
mission to form such companies at his pleasm^e. 

^ See " South Carolina Gazette," January 26 and February 9, 1740. 

*" Statutes," IX., 664-666; IV., 209, 296, 334, 350, 383, 541; 
Johnson's "Reminiscences," 206-209; Weston, 202. 



94 Government of the Colony of South Carolina. [94 

were three independent companies located in Charleston 
and containing from eighty to one hundred men each. The 
first was of light infantry, organized in 1765;^ the second was 
a company of grenadiers, organized at about the same time f 
the third was a company of fusileers, consisting entirely of 
Germans, organized July 17, 1775, for the express purpose 
of offering resistance to England should an appeal to arms 
become necessary.^ 

In addition to militia service, the inhabitants of the colony 
were liable to patrol duty, made necessary by the system of 
slavery, and the inhabitants of Charleston were liable to the 
additional duty of keeping watch. In the early years of the 
colony, when the number of slaves was small, the govern- 
ment of the negroes was placed in the hands of all the whites, 
and patrol duty was unnecessary; but with the increase in 
the number of slaves came the adoption of the patrol sys- 
tem, which not only served to keep the slaves in subjection, 
but also removed from them several indignities to which 
they had previously been subjected. The first act was 
passed in 1704,* and called for patrol duty in time of alarm 
only. The next reference to the patrol is found in the 
militia act of 1721.^ But no system was adopted until 1734,^ 
and that system underwent alterations in 1737^ and 1740.^ 
The act of 1740 remained in force, with slight alterations in 
1746' and 1839," ^^til the close of the Civil War. 

1 " South Carolina Gazette," June 9, 1766. 

^ Carroll, I., 508; Letter written from South Carolina in 1772, 
reprinted in the " Southern Literary Messenger," March, 1845, p. 
140, and in the " Historical Magazine," November, 1865, p. 343. 

^ Rosengarten, " The German Soldier in the Wars of the United 
States," 18, 33. This company did good service for the Patriots 
throughout the Revolutionary War. 

* " Statutes," II., 254, 255. ' " Statutes," IX., 639, 640, §§ 26-29. 

«" Statutes," ni., 395-399. "^"Statutes," HI., 456-46L 

« '♦ Statutes," III., 568-573. 

» " Statutes," in., 681-685, 751; IV., 47, 96, 207, 295, 333, 350, 384, 
541. 

'' " Statutes," XI., 57-61. 



95] Militia. 95 

According to these acts, the boundaries of the patrol dis- 
tricts were identical with those of the militia, and all who 
were liable to militia duty were likewise liable to patrol.^ The 
organization of the patrol varied somewhat in the different 
acts. In 1 721, the captains of the various militia companies 
appointed persons to ride patrol in their respective districts, 
and relieved them from time to time. In 1734, the patrol in 
each militia district was put under the charge of three com- 
missioners. They appointed a captain, who enlisted four 
men to patrol the district, subject to the approval of the 
commissioners. The change in 1737 consisted in the elec- 
tion of the captain by fifteen members of the patrol appointed 
by the commissioners. The acts of 1740, 1746 and 1839 
contained very elaborate provisions upon the subject, which 
in brief were as follows: The ofHcers of each militia com- 
pany divided their district into patrol districts, over each of 
which was appointed a captain of patrol. Each muster day 
certain persons were detailed to ride patrol until the next 
muster day. Any one appointed was obliged to serve, pro- 
vide a substitute or pay a fine. The duties of the patrol 
were various, but consisted mainly in visiting and examining 
at least as often as once in two weeks every plantation in the 
district, searching negro houses for " offensive weapons " 
and stolen goods, arresting and whipping negroes away 
from their masters' plantations without permission, pursu- 
ing runaways, and in fine preserving peace and order among 
the negroes. 

The watch at Charleston was established very early in the 
history of the colony/ and acts relating thereto were passed 
almost yearly from 1685 to 1701.^ According to these early 
acts, all male inhabitants, female heads of families (when 



^ The act of 1734 temporarily exempted patrols from militia duty, 
arid the act of 1737 fm*ther exempted them from parish, road 
and jmy duty. 

^Eamsay says 1675, "History," I., 125;; Rivers says 1671, 
" Sketch," 99. 

' " Statutes," II., 76, 77, 94, 96, 121; VII., 2, 4, 7, 17, 18. 



96 Government of the Colony of South Carolina, [96 

there was no male), and non-resident householders were 
obliged to perform watch duty or provide substitutes. The 
watchers were divided into four groups, from each of which 
six were appointed nightly to stand watch, under the direc- 
tion of the constables, in each of the four quarters of the 
city, to quell all disturbances and arrest such suspicious 
characters as were found out late at night/ The constables' 
watch was superseded in 1703 by a military watch, consist- 
ing of a captain and lieutenant, appointed by the Governor, 
with twenty-four watchers, enlisted by the captain, of whom 
sixteen served nightly, receiving a small salary for their ser- 
vices.^ Later in the year the inhabitants were divided into 
twenty squads, each watching by turns, under the direction 
of commissioners appointed by the Assembly.* In the fol- 
lowing year the management of the squads was placed 
under the direction of the captains of the militia companies.* 
Other minor changes were made in 1707 and 1708.' In 
1709, a return was made to the earlier system of constables' 
watches, where all the inhabitants served in turn without 
pay.^ How long this system lasted, and when or what 
changes or modifications were made therein, cannot now be 
stated. Acts passed in 1711 and 171 3' contained similar 
provisions, but all subsequent acts relating to this subject 
are lost.^ 

^ '* Statutes," Vn., 2, 3, i, 7, 17, 18. ^^ statutes," VII., 23-27. 
^ " Statutes," vn., 33-35. * " Statutes," II., 255, § 5. 

» " Statutes," VII., 49-54; IX., 11, § 11. 

° " Statutes," VII., 54-56. ' " Statutes," VII., 57, 60. 

« Acts were passed in 1719, 1720, 1741, 1761. " Statutes," ni., 
102, 153, 588; IV., 153; " Ck)llections," 11., 286. 



CHAPTER IX. 
Taxation. 

The cost of running the government in the early period 
was very slight. Until 171 3, tax acts were intermittent and 
few, for the government was supported by the Proprietors 
out of the quit-rents, and direct taxation was resorted to only 
in cases of emergency, generally to raise money to pay debts 
contracted by expeditions against St. Augustine or to put 
down attacks by the Indians.^ But after the Revolution of 
1 719 the government was supported entirely by taxes levied 
upon the settlers. The custom thereafter was to pass an act 
each year, specifying the exact amount of money to be 
raised. At first these tax acts were passed at the opening of 
the fiscal year, but by 1775 they were generally passed some 
six months after the close of the fiscal year. Sometimes 
two years or even more would pass by without the passage 
of a tax act.'' The various tax acts are long, and after 1721 
are followed by long appropriation clauses appropriating 
every penny raised to some specific object. 

The method of collecting the tax varied somewhat year by 
year, each tax act stating the amount of tax, the time of pay- 
ment and the method of collection. According to the tax 
act of 1686,^ the earliest tax act extant, the tax was assessed 
by thirteen freeholders appointed by the Council, and col- 
lected by two tax receivers. In 1690, the tax was collected 
by the constables. But the system adopted after 1700 was 
much more complicated. Each tax act generally appointed 

^ Prior to 1713, tax acts were passed in 1682, 1683, 1685, 1686, 
1691, 1693, 1701, 1702, 1703 and 1704. Of these, all are lost except ' 
those of 1686, 1701 and 1703. 

2 None were passed between the years 1727 and 1730, or between 
1769 and 1777. 

' " Statutes," II., 16, 17. 



98 Government of the Colony of South Carolina. [98 

by name three sets of officials: Inquirers, Assessors, and 
Collectors. The acts passed after the middle of the century, 
however, generally combined the duties of the three sets of 
officers into one, except in Charleston, where one set per- 
formed the duties of Inquirers and another the duties of 
Assessors and Collectors. 

The duty of the Inquirers^ was to take under oath an 
inventory of the taxable property in their respective par- 
ishes. This was done in the earlier days by personal visit to 
each inhabitant in the particular district. In the later days 
each taxpayer was expected to hand the Inquirers a written 
report of his taxable property yearly. For concealment of 
property, a taxpayer was heavily punished. In case of 
refusal or neglect to render an account, the Inquirers were 
allowed to state the amount according to their best informa- 
tion, knowledge and judgment, and the delinquent was 
assessed double rates. The Inquirers, by a certain day 
named in the act, prepared a list stating the amount and loca- 
tion of the property of each inhabitant of the parish and pub- 
lished it for correction, giving the corrected list to the Asses- 
sors a week or two later. The Assessors, whose number was 
generally five in Charleston and two or three in the other 
parishes,^ met at a certain hour upon a certain day at a cer- 
tain house, all carefully described in the tax act, and there 
received the reports of the Inquirers and levied the tax in 
accordance with the rules prescribed in the act. Assessors 
were not bound to follow the returns of Inquirers strictly, 
but were allowed at their discretion to deviate from them 
and assess according to any better knowledge that they 
might possess. Any one believing himself to be overrated 
could appeal to the Assessors for an abatement of taxes." 

^ Their number generally varied from two to six, according to 
the size of the parish. 

2 After 1724. Before that date their number was larger. By the 
act of 1701, the Inquirers acted as Assessors. " Statutes," n., 182, 
§2. 

^ In 1682, 1703 and 1715, a board was constituted to hear appeals. 
" Statutes," II., 17; 208, § 7; III., 269, § 8. 



99] Taxation. 99 

Having completed their labors, the Assessors issued a report, 
a copy of which was posted upon the door of the parish 
church. After 1721, the Assessors generally acted as Col- 
lectors in the various parishes.^ Prior to 1721, the taxes 
were paid at Charleston; after that date, to the Assessors in 
each parish, who forwarded the money to the colonial 
Treasurer at Charleston upon a certain day.^ The Inquirers, 
Assessors and Collectors not only generally served without 
pay, but were heavily fined for refusing to serve or for neg- 
lect of duty/ 

The amount raised from taxation varied greatly year by 
year, from £400 in 1682 to £285,000 in 1761/ At first, only 
property was taxed. In 1690, a poll tax was collected from 
each freeman and each white servant above the age of six- 
teen.** In 1701, a poll tax was levied upon freemen alone.* 
In 1703, land, stocks and abilities were taxed.^ After 171 9, 
storekeepers outside of Charleston were assessed at the same 
rate as those within,^ and in 1716 a tax was placed upon 
negroes.' Property of transients was not taxed until 1739, 
when a tax was levied upon itinerant merchants selling 
goods in Charleston.^" Town lots outside of Charleston re- 
mained untaxed until 1760. Clergymen and property de- 
voted to pious, charitable or educational uses were untaxed 
after 1739. After 1716, one-sixth of the total tax was gen- 

^ The tax was variously collected before 1721. 

^ The property of delinquent taxpayers was levied upon for non- 
payment. 

^ The acts of 1720 and 1721 allowed the Assessors 2^^ per cent, 
of the amount assessed. The amount of the fine was generally 
£50 until 1764, after which time it was increased to £300. 

*In 1703 it was £4000; in pL719, £35,000; in 1738, £8000; in 1739, 
£35,000; in 1751, £60,000; in 1752, £39,000; in 1756, £91,000; in 1757, 
£260,000; in 1758, £166,000; in 1759, £97,000; in 1761, £285,000; in 
1762, £162,000; in 1765, £103,000; in 1766, £35,000; and in 1769, 
£70,000. 

= " Statutes," II., 41. ' " Statutes," II., 182, § 1. 

' " Statutes," ni., 206, § 1. « " Statutes," ni., 70, § 5. 

^ " Statutes," n., 627, § 1. ^° " Statutes," III., 535, §§ 31-35. 



100 Government of the Colony of South Carolina, [100 

erally assessed upon the inhabitants of Charleston. Any 
one owning realty in Charleston and also in the country paid 
rates in Charleston for his town propert}^ and in the country 
for his country property; and in like manner slaves of 
Charleston inhabitants working principally in the country- 
were rated in the country tax, and vice versa. The ratio of 
tax upon the various articles varied somewhat year by year, 
but some idea of the ratio may perhaps be obtained from the 
act of 1764, the heaviest passed during the colonial period. 
This act levied a tax of 40s.^ upon each slave ; 40s. upon each 
one hundred acres of land; 20s. for each £100 value of town 
lots, buildings, wharves, etc.; 20s. upon each £100 at interest; 
4 per cent, upon annuities ; 40s. upon each free negro paying 
no other tax, and 20s. upon each iioo invested in stock in 
trade, profits, faculties, professions, factorage and trade. 
This method of collection remained practically unchanged 
until 1798. 

Besides the direct tax, considerable money was raised from 
the tariff.'' The first tarifif act was passed in 1691, and con- 
sisted of an export duty upon furs and skins.^ This was 
followed a few years later by an import duty upon liquors 
and tobacco.* The number of dutiable articles steadily in^ 
creased, until in 1775 they included, in addition to the above, 
sugar, bread, flour, fish, lumber, cocoanuts, Indians, negroes, 
vinegar, molasses, lime-juice, cocoa, chocolate, butter, 
cheese, candles, tallow, pork, beef, cranberries, oil, biscuit, 
ham, bacon, soap, timber, horses, indigo, pitch, tar, ginger, 
cotton, preserves, sweetmeats, spermacetti, beeswax, peas, 
corn, fruits, goods, wares and merchandise, etc., etc.'* 

^ A shilling in 1764 was worth about three cents. See Chapter X. 

2 The amount varied from year to year. In |1710, the amount 
raised was about £4500; in 1721, about £8000; in 1728, about 
£15,000; in 1732, about £13,000; in 1772, about £98,000. See Car- 
roll, II., 259; "Statutes," III., 149, 334; Anderson, ''Historical 
and Chronological Deduction of the Origin of Commerce," 190; 
"Collections," I., 303. 

3 " Statutes," II., 64-68. * In 1695. " Statutes," II., 96. 
^ " Statutes," in., 744, § 17. 



101] Taxation, 101 

The customs officials were of two classes: Comptrollers 
and Waiters, both appointed by the Assembly. The duties 
of the Comptrollers consisted in keeping records of all vessels 
entering and leaving port and in overseeing the collection of 
the duties. They were paid by fees, regulated by the As- 
sembly. The duties of the Waiters were to be at the wharves 
when vessels came in and to aid in enforcing the customs 
laws. They received a salary, at first of £40 a year, increased 
to iioo by 1740. Of the three ports of South Carolina, 
Charleston was by far the most important, yet no colonial 
custom-house was erected there until 1770/ The first 
Comptroller was appointed in 1703 and the first Waiter in 
1 71 6. Customs officials were appointed at Beaufort and 
Georgetown after the opening of those ports in 1740.'' 

The method of collecting the duties varied but slightly 
throughout the entire colonial period." In brief it was as 
follows. A sea-captain on arriving in port made a manifest, 
signed under oath, of all goods contained in his vessel, and 
made oath that' no goods had been landed secretly. Im- 
porters similarly under oath made three copies of their mani- 
fest, containing a list of goods imported, place of export and 
names of the vessel, captain and importer. These copies 
were given to the Comptroller of the port, who filed one 
away and countersigned the other two. The importer then 
carried the countersigned copies to the Treasurer, to whom 
he paid the duties upon the goods imported. The Treasurer 
filed away one of the copies and endorsed the other, which 
was then taken to a Waiter, who placed it on file and gave 
the captain permission to unload the goods. Likewise, ex- 

1 At a cost of £60,000. " Statutes," IV., 257-261, 326. 

^ A Receiver and a Waiter were appointed in each in 1740, and 
a Comptroller in 1743. 

'Tariff acts were passed in 1691, 1695, 1703, 1707, 1711, 1716, 
1719, 1721, 1723, 1740 and 1751, whicli last continued in force 
until 1783. See " Statutes," II., 64-68, 96, 201, 247, 304, 308, 326, 
366, 652-661; in., 56-68, 159-170, 193-204, 270, 556-568, 670, 743-751; 
IV., 264, 332, 576-582. Duties were both ad valorem and specific, 
the former generally prevailing. 



102 Government of the Colony of South Carolina. [102 

porters made entry of dutiable goods with the Comptroller 
and Treasurer, and the captain on receiving the goods on 
board his vessel did the same, after which he received a per- 
mit to sail. The rules adopted to prevent smuggling were 
many, but only two or three of the more important need be 
mentioned here. Previous to 1721, goods could not be 
landed until the duty upon them had been paid. After that 
date importers were allowed to unload on giving bond to 
pay the duty within three months."" Goods landed in the 
night-time or sold on board ship were forfeited. Finally, 
customs officials, when properly armed with search warrants, 
were allowed in the daytime to search vessels or buildings 
wherein goods were suspected to be concealed. The sys- 
tem in the earlier years was simpler than in the later, but the 
general scheme remained the same throughout the entire 
colonial period. 

There was also a small tonnage duty, levied for the first 
time in 1686. This duty was payable at first in powder, a 
half-pound of powder for each ton of ship measurement.^ In 
1690, a Powder Receiver was appointed, and the tax was 
allowed to be paid in money, fifteen pence being considered 
the equivalent of a half-pound of powder.^ The powder was 
kept in a brick powder-house, erected in Charleston in the 
early years of the eighteenth century.* This money equiva- 
lent slowly increased. in amount until 1761, when it was 
placed at two shillings currency.^ The Powder Receiver 
was appointed at first by the Governor, but later by the As- 
sembly.^ The method of collection was very simple. Cap- 
tains on entering port entered the tonnage of their vessels 
with the Treasurer at the time the manifest was made. The 
Treasurer notified the Powder Receiver,^ who collected the 

^ The ax3t of 1707 had accorded a similar privilege. 
2 '' Statutes," II., 20, §1. ="' Sitatutes," II., 42-44. 

* " Statutes," II., 213. ' " Statutes," HI., 589, § 1. 

« " Statutes," II., 43; III., 685, § 1. 

^ After 1761, the entry was made with the Powder Receiver 
direct 



103] Taxation. 103 

tax and gave a receipt therefor. The Secretary was for- 
bidden to give clearance papers to any captain until he had 
produced a certificate showing the payment of the tonnage 
duty.' 

The passage of the navigation acts and acts of trade by the 
British Parliament necessitated the appointment of a dupli- 
cate set of customs officials in the American colonies. Hence 
captains of vessels were obliged within twenty-four hours 
after their arrival at a colonial port to give the Governor or 
some one designated by him an inventory of the goods 
imported, to tell where the goods were loaded and to prove 
the vessel to be English.'' The official just referred to soon 
came to be known as the Naval Officer, who was generally 
appointed by the Governor and gave security to the Com- 
missioners of the Customs for the faithful performance of 
his duties/ which were to keep records of the entrance and 
clearance of all ships, grant certificates for the clearance of 
ships, and send the Commissioners of Customs at London 
yearly lists of ships that had entered or cleared his ports.* 
The collection of duties for the English government, in addi- 
tion to the colonial duties which have been already described, 
was placed in the hands of the English Commissioners of the 
Customs, with power to appoint Collectors in the various 
colonial ports.^ The Governors acted as Collectors at first, 

^ Tonnage acts were passed in 1686, 1690, 1695, 1698, 1703, 1707 
and 1746. " Statutes," II., 20, 42-44, 82-84, 150-153, 213, 214, 278, 
308; ni., 685, 686, 588-590. The act of 1707 is lost. 

^ 15 Oar. n., c. 7, § 8. The method in detail is described in 15 
Geo. n., c. 31. For provisions respecting colonial goods aUowed 
to be carried to Mediterranean ports, see 3 Geo. II., c. 28; 12 
Geo. n., c. 30; 4 Geo. III., c. 27; 5 Geo. III., c. 48, § 2. 

^ During the proprietary period he was appointed by the Pro- 
prietors and confirmed by the Commissioners of Customs. See 
" Collections," I., 144, 155, 156, 161, 162; II., 207; " North Carolina 
Colonial Records," I., 492. 

^15 Car. n., c. 7, § 8; 7 and 8 W. III., c. 22, §5; Chalmers' 
" Opinions," I., 168; " Collections," I., 144, 147, 148, 232, 247, 261; 

m., 321. 

^25 Car. II., c. 7, §§2, 3; 7 and 8 W. III., c. 22, §11; Douglass' 
" Summary," I., 216; " Collections," I., 147. 



104 Government of the Colony of South Carolina. [104 

but after the erection of custom houses in the colonies, Col- 
lectors were appointed in each port/ The first English Col- 
lector at Charleston was appointed in 1685. Collectors were 
appointed at Port Royal and Georgetown shortly after the 
close of the proprietary period.'' In the later colonial period 
three Surveyors-General of the Customs for America were 
appointed : one for the northern, one for the central, and one 
for the southern colonies. Their duties were to oversee the 
Collectors in the various ports and to represent the Commis- 
sioners of Customs in America. The office was abolished 
in 1774, and the Collectors were expelled on the breaking 
out of the Revolution.^ 

In addition to the revenue derived from the tariff and 
internal taxation, the colony received small sums from vari- 
ous sources, the more noteworthy being those arising from 
licenses to sell liquor and to engage in the Indian trade. In 
1695, the liquor license fee was placed at £5 for a permit to 
sell all kinds of liquors, and at £3 to sell everything but wine.* 
Until 1709 the license fees were a perquisite of the Gov- 
ernor.^ In 1711,^ the granting of liquor licenses was placed 
under the care of a board of three commissioners. In 1741, 
the board was done away with, and the Treasurer was au- 
thorized to grant licenses upon the recommendation of two 
Justices of the Peace of the parish where the applicant wished 
to sell. The fee was also increased; a first-class license cost 
£6 currency in Charleston and £5 in the country; a second- 
class license which did not allow liquor to be drunk on the 
premises cost £4 4s. in Charleston and i6s. in the country.' 

^ Ghalniers' " Revolt," I., 126. 

2 Chalmers' " Revolt," I., 193; Carroll, I., 359; " CoUections," I., 
119, 159, 178, 285, 295; H., 120, 173. 

^Carroll, n., 220; Chalmers' "Revolt," I., 127; "Collections," 
n., 126, 195. 

*" Statutes," II., 85, 86, 113-115, 157, 190, 198, 336. The acts 
of 1683 and 1693 are lost. " Statutes," 11., pp. v. and 77. 

= " Statutes," II., 338, § 7; 364, § 6. '" Statutes," H., 365, § 7. 

'"Statutes," III., 521-525, 752; IV., 47, 96, 207, 294, 333, 350, 
383, 541. 



105] Taxation. 105 

In 1751? the Governor was given power to limit the number 
of liquor licenses to be granted/ 

The question of regulating the Indian trade seems to have 
given the Assembly a great deal of trouble. In 1707,'' 
commissioners were appointed to have entire charge of the 
Indian trade and to grant licenses to traders. In 1719, the 
commissioners were formed into a corporation. In 1721, a 
return was made to the old system, but the commissioners 
were given power to settle quarrels between the Indians and 
whites and to redress grievances of all kinds. In 1722, the 
powers of the board were transferred to the Governor and 
three members of the Council, who were given the right to 
employ a supervisor to manage the Indian trade. This gave 
way in the following year to the appointment of a single 
commissioner, with entire management of the Indian trade. 
In 1 73 1, the commissioner was given additional powers to 
enforce his judicial decisions, and succeeding acts tended 
largely to increase his powers. The fees for licenses varied 
greatly at different times. In 1707 they were established at 
£8 currency a year. In 1721 they were reduced to £3. In 
1723 they were increased to £30, and three persons were 
allowed to trade with one license. In 1731 a license was 
fixed at £30, and a trader was allowed to have two sub- 
traders on payment of £20 additional, — confined, however, 
to a certain territory. In 1734 the fee was increased to £50, 
lowered two years later to los. In 1739 it was placed at i6s., 
at which figure it remained until the outbreak of the Revo- 
lution.'' The amount of money derived from license fees is 
not stated, but probably it was inconsiderable. 

^ " Statutes," III., 752; IV., 207, 294, 333, 350. 

2 The act of 1692 is lost. " Statutes," II., 55. The Proprietors 
attempted to regulate the Indian trade as early as 1677. See 
Rivers, " Sketch," 388. 

^ The following is a list of statutes passed relating to the Indian 
trade: " Statutes," II., 55, 66-68, 309-316; III., 86-96, 141-146, 184- 
186. 229-232, 327-334, 399-402, 448, 449, 517-525, 587, 646, 763-771. 



106 Government of the Colony of South Carolina. [106 

No county tax was ever levied during the colonial period/ 
There was no system whatever in the collection of local 
taxes. Each board of commissioners collected its own taxes 
whenever and as frequently as it pleased. Outside of 
Charleston the principal local taxes consisted of the road 
and poor rates. In Charleston there were, in addition, sev- 
eral others. Thus the fire commissioners provided the town 
with ladders, fire-hooks, buckets, engine, etc., and assessed 
the inhabitants annually to pay the expenses of the fire de- 
partment.^ In like manner the cost of supporting the 
Charleston watch was defrayed by a tax upon the inhabi- 
tants of Charleston, collected sometimes by Assessors speci- 
ally appointed for the purpose and sometimes by the colonial 
tax officials at the same time that the colonial taxes were 
collected.^ In Hke manner the buoys and pilot-boat in 
Georgetown harbor and the pilot-boat at Beaufort were at 
various times supported by local taxes.'' 

The roads were built and kept in repair in practically the 
same manner throughout the entire colonial period. Until 
1 72 1, each road was under the care of a separate board of 
commissioners. In 1721 the various boards were united 
into thirty-three separate boards, each having in charge one 
or more roads, creeks or drains.^ With the growth of the 
colony, other boards were added. The duties of the various 
boards remained practically the same throughout the entire 
period: building and keeping in repair the roads, bridges, 
etc., under their especial care. Sometimes the work was per- 

^ The taxes called for by tlie precinct-court act of 1721 were never 
levied. " Statutes," VII., 174, § 2; 183, § 15. 

2 " Statutes," VII., 11, § 15; 20, § 15; 41, § 1; III., 535, § 30; Vn., 
59, 60. The department was created in 1698. In 1739, the support 
of the department cost the town £200. 

^^ " Statutes," III., 509, §33; 535, §30; VII., 25, §§8-10; 52; 53. 
The cost of supporting the Charleston watch was, in 1703, £550; 
in 1708, £840; in 1738, £819 8s. 4d.; in 1739, £1042 8s. 8d. 

' " Statutes," III., 407, 678-680, 712-714, 757-759, 760-763; IV., 48, 
97, 151, 156, 157, 208, 265, 295, 321, 332, 348, 382. 

' " Statutes," IX., 49-57. 



107] Taxation. 107 

formed by the males of the district; sometimes it was hired 
out and the cost assessed by the commissioners upon the 
inhabitants to be benefited by the road. The acts are many 
and vary greatly in detail, but the general idea of all was the 
same/ In Charleston the custom was to assess the inhabi- 
tants and hire the work done. After 1764 a tax of £1400 
was annually assessed upon the inhabitants of the town to 
pay for the care of the streets.'' 

It finally remains to speak of the tax for the support of the 
poor. Until 171 2, the poor were supported out of the colo- 
nial treasury.^ In 171 2 their support was thrown upon the par- 
ishes in which they resided, the churchwardens and vestry 
assessing the inhabitants for their support.* A large num- 
ber of legal fines for various offenses were granted the 
wardens for the support of the poor, a few of the more inter- 
esting of which are the following: Fines levied on intimi- 
dators at the polls ;^ on officials receiving more than the 
legal feef on persons refusing to serve in certain offices to 
which they had been elected f for neglecting to whip slaves 
found illegally away from their master's plantation f for ille- 
gally giving slaves tickets without their master's consent;' 
fines on Constables, Justices of the Peace and Jailors for 
neglect of duty in not enforcing the provisions of the slave 
code;^" fines on masters giving their slaves permission to 
spend Sunday in Charleston," or to work where they pleased," 

^"Statutes," IX., 1-150. 

2 See "Statutes," IV., 205, §29; 228, §29; 253, §32; 283, §31; 
309, 332; IX., 50, §1; 697-705. 

^ " Statutes," II., 117, § 3. Charleston looked after its own poor. 
" Statutes," II., 135, § 3. 

*" Statutes," IL, 593, §3. See also H., 606, §1; III., 117, §6; 
IV., 50. 

^ " Statutes," n., 689, § 23; III., 54, § 15; 139, § 14. 

«" Statutes," III., 414, §1. ^"Statutes," IV., 50, §2. 

«" Statutes," VII., 352, §2. 

' " Statutes," VII., 372, § 2; 386, § 2. 

^° '* Statutes," VII., 364, § 31. 

" " Statutes," VII., 364, § 31. ^^ " Statutes," VII., 408, § 33. 



108 Government of the Colony of South Carolina, [108 

or neglecting to report the finding of stolen property upon 
their slaves/ or maltreating^ or not giving them sufficient 
food or clothing/ or for neglecting to have at least one white 
person upon a plantation for every ten slaves kept there ;* for 
neglecting to publish a slavery act at the head of the militia f 
for firing a gun unnecessarily after dark/ fines on masters 
for refusing to give a certificate of discharge to a servant who 
had served his time/ or maltreating^ or turning him away 
when sick/ for getting a servant drunk or trading with 
him/° fines for violations of the Sunday law/^ or going to 
church unarmed, or, if armed, not taking the arms into 
church /^ fines on officials neglecting to enforce the law relat- 
ing to pedlers, or pedlers refusing to show their licenses on 
demand/^ fines on persons for selling wood short length or 
coal short measure, or refusing to serve as Measurer/* fines 
on bakers for adulterating their bread /^ fines for voluntarily 
communicating smallpox to another, or not giving public 
notice of infected houses /^ for leaving a vessel when in quar- 
antine;" for running a lottery, or buying or selling lottery 
tickets, or gambling/^ fines on Sheriffs for neglecting to fur- 



^ " statutes," VIL, 364, § 31. 




2 " Statutes," IIL, 18, § 13; VII., 


399, §6. 


' " Statutes," Yll., 411, § 38. 




*"' Statutes," ni., 272, §§1, 3. 




= " Statutes," III., 698, § 4. 




""Statutes," VIL, 4^?,, §41. 




'"Statutes," IIL, 17, §10. 




« " Statutes," IIL, 624, § 11. 




^"Statutes," IIL, 628, §25. 




^' " Statutes," m., 625, § 12. 




" " Statutes," II., 398, § 9. 




^' " Statutes," VIL, 417, § 1. 




^^" Statutes," IIL, 489, §9; 488, 


§3. 


^' " Statutes," in., 690, § 14; IV. 


, 292, §§ 7, 8. 


^' " Statutes," TIL, 717, § 4. 




" " Statutes," IIL, 513, § 1; IV., 


108-109; 182-185. 


""Statutes," IIL, 177, §4. 





^« " statutes," IIL, 730; IV., 159, § 2; 160, §§ 7, 8; 180. 



109] Taxation, 109 

nish a watch or for not watching, or getting drunK while on 
watch ;^ fines for butchering cattle or hogs or erecting 
slaughter-houses, cattle-pens, sheep-pens or hog-sties within 
the Charleston intrenchments ;^ fines for letting chimneys 
catch firef for boiling pitch, tar, rosin or turpentine in 
Charleston, or keeping stills in Charleston;* fines on clerks 
of the county courts for practicing lawf fines for refusing 
to work upon the roads ;^ fines on ferrymen for non-attend- 
ance to their duties f fines for killing deer in the night-time 
or hunting more than seven miles away from homef and 
fines for selling meat, butter or fish in Charleston except at 
the appointed markets.^ These are but a few of ,the fines 
specially appropriated for the support of the poor. It is 
impossible to state the amount derived from them, as the 
majority were levied by Justices of the Peace, who kept no 
records of their proceedings, and in many cases by commis- 
sioners with scarcely any trace of judicial procedure; and, 
finally, few of these fines lasted for more than a few years. 
Probably the amount raised from them was very inconsid- 
erable, and the poor were supported principally by a local 
tax upon the inhabitants of the parish. 

^ " Statutes," VIL, 4, § 2; 8, § 1; 34, § 4; 51, §§ 7, 8. 

' " Statutes," VIL, 12, § 19; 21, § 19; 22, § 24; 38, §§ 1, 7; 76, §§ 1, 
3; IX., 702, § 15. 

' " Statutes," VIL, 11, § 14; 20, § 14; 22, §24; 42, §4. 

* " Statutes," VIL, 42, §§ 5, 6. ' " Statutes," VIL, 168, § 8. 

« " Statutes," IX., 55, § 21. 

^"Statutes," IX., 61, §3; 65, §7; 68, §3; 76, §4; 77, §1; 79, 
§3; 81, §1; 122, §4. 

« " Statutes," IV., 310, 311. 

' " Statutes,'' IX., 692-697, 705-708. 



CHAPTER X. 
The Currency. 

The currency problem that presented itself in South Caro- 
lina :was practically the same as that in the other colonies. 
In none of them were the precious metals found in any 
appreciable quantity. On the other hand, the commercial 
policy adopted' by England was of a character calculated to 
withdraw from the colonies what little coin they did possess. 
Hence we might expect a continual stringency in the money 
market; and such I indeed was the case. In fact, very little 
coin was to be found in any of the colonies, and that came 
chiefly from Mexico and the West Indies, finding its way 
into the English colonies through the illicit trade carried 
on by the latter with the former. These' coins were of 
various values and were variously received in the different 
colonies. There was no standard of value in any colony and 
money circulated anywhere from par to fifty per cent, 
discount, according to the agreement made by the parties.^ 
To obviate this difficulty and to settle the values of foreign 
coins in the colonies. Queen Anne issued a proclamation 
stating in English currency the value of the principal coins 
in circulation in the colonies. This proclamation did not 
make the coins mentioned therein legal tender, but merely 
gave them a stable value in all the colonies, which was 
generally about twenty-five per cent, less than sterling. The 
proclamation was issued June i8, 1704. As it was very 
generally disregarded in the colonies,^ Parliament passed an 
act three years later levying a fine of £10 upon any one re- 

^ " New York Colonial Documents," IV., 669; Chalmers' " Revolt," 
I., 320; "Annual Register," 1765, p. 27]; Carroll, L, 268. 

2 " Historical Manuscripts Commission," 5tli Report, p. 228; 
" Journals of the House of Commons," XXIH., 527. 



Ill] 



The Currency. 



Ill 



ceiving these coins at a higher rate than that mentioned in 
the proclamation/ The amount of foreign coin in the 
colonies was by no means sufficient to satisfy the needs of 
the colonists. In South Carolina, as early as 1687, several 
commodities were given a standard value in the payment 
of debts/ and taxes were allowed to be paid in rice or even 
other merchantable commodities.^ 

In 1703, South Carolina issued her first paper money. 
The unfortunate expedition against Saint Augustine during 
the preceding year had saddled the colony with a heavy 
debt, to pay which a tax was levied upon the settlers.* In- 
stead of waiting until the money should be collected, the 
expedient was resorted to of paying the debt immediately 
by the issue of bills of credit, .which it was expected would 
be retired at the end of the year. £6000 were accordingly 
issued, in bills of various denominations, ranging .from 50s. 
to £20 each, bearing interest at twelve per cent, and de- 
clared to be a legal tender and receivable for taxes.^ The 
continuation of Queen Anne's War made it necessary not 



^The values given the coins were as follows; halves, quarters, 
etc., proportionately: 
Sevil pieces of eight, old plate, 

new " 
Mexico," "... 

Pillar, " "... 

Peru, " "... 

Cross Dollars, .... 
Bucatoons of Flanders, 
Ecu's of France or ;Silver Lewis, 
Crusadoes of Portugal, . 
Three Gilder pieces of Holland, 
Old . Rix Dollars of the [Empire, 

6 Anne, c. 30. Also enacted in 
utes," n., 563-565. See also I., 428. 

=^ " Statutes," n., 37. 

^ Ashley, " Memoirs and Considerations Concerning the Trade 
and Revenues of the British Colonies in America," 50. 

* The tax act called for £4000, and a duty act was expected to 
raise the remainder. " Statutes," II., 201-210, 229-232. 

^"Statutes," II., 210-212, §§10-15. 









4s. 6d. 








3s. 7d. 1 far. 








4s. 6d. 








4s. 6d. 3 far. 








4s. 5d. 








4s. 4d. 3 far. 








5s. 6d. 








4s. 6d. 








2s. lOd. Ifar. 








5s. 2d. 1 far. 








4s. 6d. 


Soutl 


1 Cai 


'oling 


I in 1712; " Stat- 



112 Government of the Colony of South Carolina. [112 

only to use the funds collected for the withdrawal of the 
bills of credit, but also to levy additional taxes in order to 
repair the fortifications at Charleston, repel invasion and 
undertake expeditions against Saint Augustine. Therefore 
the bills, instead of being redeemed at the end of the year, 
were simply continued in circulation, and the lack of coin 
in the colony gave them a ready circulation. 

The continuation of the war also called for the issue of 
more bills, which were generally in smaller denominations 
than the iirst.^ In 1712 was passed the Bank Act, so called, 
which authorized the emission of £52,000 in bills to take 
the place of those already issued and to pay debts already 
incurred.'' The corporation created by this act was not a 
bank in our sense of the term. The nine members therein 
named were merely authorized to issue a certain number 
of bills of credit, which were to be redeemed at a certain 
time and in a certain manner. The act conferred no power 
to do banking business of any kind.^ With the outbreak ol 
the Yesmassee War in 171 5 came another issue of bills, and 
before the close of the war £50,000 in paper had been is- 
sued/ By the terms of issue, these various bills were to be 
redeemed within a certain number of years,^ were receivable 
for customs and taxes, and when once returned to the treas- 
ury could not be reissued. After several bills had been 
retired from circulation, however, the custom was to author- 
ize the issue of new bills to take the place of the old and to 
provide for the establishment of a sinking fund for their 
future payment, a provision, however, seldom carried out 
in the earlier years of the eighteenth century. 

In fact, the whole matter soon fell into great confusion. 
With each Ifresh issue of bills came a decrease in their pur- 

^ See " Statutes," II., 302-304; 352-354; Carroll, II., 256, 257. 

2 " Statutes," n., 389; IX., 759-765. 

3 The first bank in South Carolina was chartered in 1801. " Stat- 
utes," VIIL, 1. 

* " Statutes," II., 627, 640, 653-655, 682. 

° Sometimes two or three, sometimes twenty or thirty. 



113] The Currency. 113 

chasing power. At the time of the first issue in 1703 and 
for a few years thereafter, the bills depreciated but slightly 
in value/ But after the large increase in 1712, their depre- 
ciation was very rapid. By 1710, they had depreciated 
about fifty per cent." At the outbreak of the Yemassee 
War, sterling was four times as valuable as currency; at its 
close, six times; and at the outbreak of the Revolution of 
1719, eight times.^ From then until 1775, sterling remained 
at a fairly constant advance over paper of from seven to 
eight hundred per cent* 

At first, no serious objection was offered to the issuing 
of paper money; but its rapid depreciation after the passage 
of the Bank Act in 171 2 frightened the merchants trading 
with the colony to such an extent as to cause the Pro- 
prietors to forbid any future issues;^ and a standing instruc- 
tion to the Governors, after the purchase of the colony by 
the King, was to prevent any increase in the amount of 
outstanding paper.^ This instruction caused a great deal of 
friction between the Governor and Assembly. An act 
passed in 1722 providing for the issue of £120,000 in bills 
was disallowed by the Crown.^ Nevertheless the Assembly 
calmly ordered the bills to be printed and put into circula- 
tion. The Governor upheld the prerogative of the King and 
refused to assent to any further inflation of the currency. 
In 1726, matters came to a crisis. The Assembly refused 

^ See Hawks and Perry, " Documentary History of the Protestant 
[Episcopal Clmrcli of South Carolina," p. 24. 

^^CarroU, H., 257. ^ CarroU, H., 145. 

* " Statutes," n., 131, § 1; 335, § 1; 447, § 32; 511, § 34; 672, § 1; 
IV., 19; 279, §31; *' CoUections," I., 301. In 1732, the Assembly 
formally declared proclamation money to be five times as valuable 
as currency. " Statutes," II., 373, § 2. 

^ " CoUections," I., 165, 167, 270, 300; Chalmers' " Opinions," II., 
27. 

« "Collections," I., 272, 302; II., 159, 300. See also " Jom^nals 
of the House of Commons," XXIII., 527, where several resolu- 
tions of the House are given in 1740. 

' " Statutes," III., 188-192; 219-221; " Collections," I., 278. 



114 Government of the Colony of South Carolina. [114 

tc pass any bill until the Governor assented to an increase 
in the amount of paper money outstanding. This deadlock 
continued until 1731, when the King finally gave his assent, 
provided proper provisions were made for the future re- 
demption of all paper issued. £106,500 were issued, and 
harmony was again restored to all branches of the legis- 
lature.^ Of subsequent issues, little need be said. Bills 
were issued every few years to supersede those in existence 
or to defray expenses of war, but sinking funds were always 
provided for, and these later bills seem always to have been 
redeemed when they fell due."" 

The amount of paper issued in the other colonies was very 
large and had depreciated very materially, although in none 
to such an extent as in South Carolina. At the request of 
the merchants. Parliament took the matter in hand in 1740 
and requested the King to issue instructions to the Gov- 
ernors forbidding the further issue of legal tender paper.' 
This was done, but the colonies persisted in doing as be- 
fore. In 1744, a bill was ordered to be brought into Parlia- 
ment to prevent the future issue of paper money,* but the 
long and earnest petitions of the colonists' postponed the 
evil day until 1751, when Parliament formally decreed that 
all acts of the New England colonies creating bills of credit 
and endowing them with a legal tender quality were void,** 
a, provision extended to the other colonies in 1764/ 

^ " CoUections," II., 126, 177; " Statutes," HI., 305-307. See the 
accounts of this interesting struggle in " Collections," I., 300-305; 
Rivers, " Chapter," 22-39. 

^ For the more prominent acts relating to bills of credit, see 
"Statutes," II., 210-212, 302-304, 352-354, 389, 604, 627, 640, 663- 
665, 682; III., 34-36, 188-192, 219-221, 305-307, 349-350, 411^13, 
423-430, 461-464, 671-677, 702-704, 776; IV., 113-128, 144-148, 154- 
155, 312-314, 323, 324, 335-336. 

^ " Journals of the House of Commons," XXn., 527. 

* " Journals of the House of Commons," XXIV., 658. 

^ See " Journals of the House of Commons," XXV., 792, 793, 
818, 819. 

«24 Geo. II., c. 53. 

' 4 Geo. III., c. 34. See also 13 Geo. III., c. 57. 



APPENDIX I. 
Population of South Carolina. 



Date 




Whites 


Slaves. 


Totals. 


1 67 1, March.' 


200 


. . 


. . 


1671-2^ 




399 






1672^ 




406 






1680^ 




1,200 


. . 


. . 


1685^ 




2,500 






1699^ 




1,100 


families. . . 


. . 


1700' 


5,000-6,000 






1701^ 




7,000 






1703' 






. . 


8,160 


1708" 




4,080 


4,100 


8,160 


1708'' 








12,000 


1714^^ 






10,000 




1715^^ 




6,250 


10,500 


16,750 * 


1715" 




6,300 







^ Sainsburj^'s " Calendars," III., No. 474. 

^Winsor's " Narrative and Critical History of America," V., 310; 
" Charleston Year Book," 1883, p. 379. 

■• Sainsbury's " Calendars," III., No. 736. 

^Carroll, II., 82. -*\ <?# 

^ Winsor, Y., 309; " Charleston Year Book," 1883, p. 385. 

** Rivers, *' Sketch," 443; '* Collections," I., 210. Also four negroes 
to one white. 

• CaiToll, I., 132; Drayton's "View," 103. 

^Humphreys, "Historical Account of the Incorporated Society 
Q^ for the Propagation of the Gospel in Foreign Parts," 25; Hawkins' 
" Missions." 23. 

^ Rivers, " Sketch," 232. 

^« " Collections," II., 217. " CarroU, II., 4^0. 

1- Rivers, "Sketch," 251, note. ^^^ Chalmers' "Revolt," II., 7. 

^* Rivers, "Chapter," 92. 



116 Government of the Colony of South Carolina. [116 



Date. 




Whites. 


Slaves. 


Totals. 


1716* 




. . 


10,000 




1720, Jan. : 


12.' 


'■ 6,400 






1720, Mar. 


14 


.' 9,000 


11,828 




1721* 




9,000 


12,000 




1721' 




14,000 


. . . 




1723' 








23,000 


1723' 




14,000 


18,000 


32,000 


1723' 




4,000 


32,000 


36,000 


1724' 




16,000-20,000 




1724'" 




14,000 


32,000 




1729" 




2,000 men. 






1730" 6 


,000-7,000 


22,000 




1730" 






28,000 




1731" 






40,000 




1733" 






40,000 




1734" 




7,333 


22,000 


29,333 


1734" 




6,000 


30,000 




1735" 






40,000 





1 **Nort]i Carolina Colonial Records," II., 233. 

2 Rivers, " Chapter," 92; " Collections," II., 239. 
' Rivers, " Chapter," 19, 56. 

*"Nev5^ York Colonial Documents," IV., 610; "Historical Manu- 
scripts Commission," 11th Report, Appendix, Part IV., p. 254. 
^ Drayton's " View," 103. 
" Carey's " American Pocket Atlas," 154. 
' Drayton's •" View," 103. 

« " History of North America," London, 1776, p. 189; " Collec- 
tions," I., 279. 
^CarroU, I., 267. 1° CarroU, H., 261. ""Collections," II., 120. 
^ Gay and Bryant's " United States," III., 107. 
^^ Buckingham, " Slave States of America," I., 31; " The First 
MJpentury of the American Republic," p. 217. 
^* CarroU, II., 129. 

^^ " Georgia Historical Society's Collections," I., 149. 
"Carroll, I., 306; Drayton's "View," 103. 
" Force's " Tracts," IV., No. 5, p. 9. 
"Ramsay, I., 110; II., 233. 



117] 


Append 


ix /. 


11 


Date. 


Whites, 


Slaves. 


Totals. 


1739' 




40,000 




1740' 


5,000 


40,000 




1743' 




40,000 




1749' 


25,000 


39,000 


64,000 


1749' 


30,000 






1750" 






64,000 


1752' 


25,000 






1753' 


30,000 






1754" 


40,000 






1755^^ 


25,000 






1755" 


30,000 






1759" 


140,000 


108,000 


248,000 


1763^^ 


30,000-40,000 


70,000 




1765^^ 


40,000 


80,000 


120,000 


1765^^ 


40,000 


90,000 


130,000 


1766^^ 


40,000 


95,000 


135,000 


1770" 




81,728 




1770" 




75,178 




1773" 


75,000 


110,000 


185,000 



1 Carroll, I., 331. 

2 " Georgia Historical Society's Collections," I., 167. 

•Winsor, "America," V., 335. * Weston, 92. 

^ Buckingham, " Slave States of America," I., 43. 

«Melish, "United States," 270; Buckingliam, I., 43. 

' " New York Colonial Docmnents," VI., 993; " New Jersey Co- 
lonial Documents," VIII., Part 2, 132. 

« MiUs, 177. 

•Bancroft, IV., 129; Last revision, H., 391. "I&i(?. 

" " London Magazine," May, 1755, quoted in " Massachusetts 
Historical Society's CoUections," VH., 200. 

"Hawkins' "Missions." "Carroll, H., 478, 479. 

" Carroll, L, 503; Drayton's " View," 103. 

" Buckingham, I., 34, 43. " Melish, " United States," 270. 

" Anderson, 188; " North American and West Indian Gazetteer," 
1778, Article Carolina; Winsor, " America," V., 335. 

^^Winsor, "America," V., 335. 

^^ " Historical Magazine," November, 1865, p. 346. 



118 Government of the Colony of South Carolina. [118 



Date. 


Whites. 


Slaves. 


Totals. 


1773' 


65,000 


110,000 


175,000 


1775' 


60,000 


80,000-100,000 




1775' 


70,000 


104,000 


174,000 


1775* 


75,000 






1783^ 






200,000 


178/ 


. . 


. . 


180,000 


1790' 


140,178 


108,805 


249,073 




Population 


OF Charleston. 




Date. 


Whites. 


Slaves. 


Totals. 


1707' 






3,000 


1722' 






300 


1732'° 






3,000 


1763" 


4,000 


4,000 


8,000 


1765" 


5,000-6,000 


7,000-8,000 


. . 


1767" 


4,000 


6,000 


. . 


1770" 


5,030 


6,276 


11,330 


1773" 






14,000 


1775" 


5,500 







^ Winsor, V., 335; " North American and West Indian Gazetteer," 
1778. 

2 Moore's " Laurens' Correspondence," 181. 

3 Winsor, V., 335. 

* Simms, " South Carolina in the Revolutionary War," 66. 

^Smyth's "Tour," I., 207. 

^Bonnet, *' Reponse aux Prindpales Questions qui peuvent §tre 
faites sur les Etats-Unis de FAmerique," I., 190. 

' United States Census. The more reliable of the above figures 
are given in Dexter's " Population in the American Colonies." 

« CarroU, II., 450. 

** Chalmers' '* Opinions," I., 55. Perhaps " voters " is meant. 

" " Collections," III., 316. " Carroll, II., 484. 

" Carroll, I., 503; " Charleston Year Book," 1880, 254. 

^^ Kohler, " Reisebeschreibungen." 

^* Also 24 free negroes. Anderson, 187; " North American and 
West Indian Gazetteer," 1778, Article Carolina. 

^IMd. i« Chalmers' "South Carolina," 36. 



119] 




Appendix I, 119 


Date. 




Whites. 


Slaves. Totals. 


1783^ 






8,000 


1784^ 






10,000-12,000 


1790^ 




8,089 


8,270 16,359 


^ Smyth's " 


Tours," IL, 84. 


^Schopf, "Reise," I., 262. 


=* United States 


Census. 


; i '; 



APPENDIX II. 

Governors of South Carolina. 



Proprietary Governors. 



Name. 



William Sayle, . 
Col. Joseph West; ^ 
Sir John Yeamans, 
Col. Joseph West/' 
Joseph Morton, 
Col. Joseph West/^ 
Sir Richard Kyrle, 
Col. Robert Quarry/, 
Joseph Morton/^ 
Sir James Colleton, 
Seth Sotheli; . 
Thomas Smith/ 
Philip Liidweli; 
Thomas Smith/ ^ 
Joseph Blake/ . 
John Archdale/ 
Joseph Blake, Jr.,' 
Col. James Moore/ 
Sir Nathaniel Johnson,^ 
Col. Edward Tynte, 
Robert Gibbes,^ 
Charles Craven, 
Robert Daniel/ 
Robert Johnson, 



Years qf Service. 
1 670- 1 67 1 
1671-1672 
1672-1674 
I 67 I -I 672 
1682-1684 

1684 
1684-1685 
1685-1686 
1 686- 1 690 
1690-1691 

1691-1693 
1693-1694 
1694-1695 
1 695-1 696 
1 696- 1 700 
1 700- 1 702 
1703-1710 
1710 
1710-1711 
1711-1716 
1716-1717 
1717-1719 



^ Nominated by Gov. Sayle. ^ Elected by the Council. 

^ Second term. * Third term. ° Did not serve. 

' Elected by the people. 

■^ Also Governor of North Carolina at the same time. 

* Appointed by Gov. Archdale. ^Appointed by Gov. Craven. 



121] 



Appendix II, 

Revolutionary Governors. 



Name. 
Arthur Middleton/ 
Col. James Moore/ 



Royal Governors, 



Name. 
Francis Nicholson 
Arthur Middleton; ' 
Robert Johnson/ 
Thomas Broughton, 
William Bull/ . 
Samuel Horsey/ 
James Glen, 
William Lyttleton, 
William Bull, Jr.,* 
Thomas Pownall,' 
Thomas Boone, 
William Bull, Jr./* 
Lord Charles G. Montague, 
William Bull, Jr./' . 
Lord William Campbell 



121 

Years of Service. 

1719 

1719-1721 



Years of Service. 
1721-1725 
1725-1730 
1730-1735 
1735-1737 
I 737-1 743 

1743-1756 
1 756- 1 760 
1 760- 1 762 

1 762-1 763 
I 763-1 765 
I 766- I 769 
1769-1775 
1775 



^ President of Revolutionary Assembly. 

^ Second term; elected by Commons House of Assembly. 

^ Second term. * President of the Council. 

^ Commissioned Lieutenant-Governor in 1726. 

^ Senior Councillor. ^ Did not serve. 



« Third term. 



III-IV 



THE EARLY RELATIONS 



BETWEEN 



Maryland and Virginl\ 



JOHNS HOPKINS UNIVERSITY STODIBS .i 

IN ] 

Historical and Political Science ' 

HERBERT B. ADAMS, Editor. I 



History is Past Politics and Politics are Present Hiatorj— Freeman. 



THIRTEENTH SERIES 
III-IV 

THE EARLY RELATIONS 

BETWEEN 

MARYLAND AND VIRGINIA 

By JOHN H. LATANE, A. B. 

IS HISTORY PAST POLITICS? 

By The Editor 



BALTIMORE 

The Johns Hopkins Press 

PUBLISHED MONTHLY 
MARCH AND APRIL, 1895 



Copyright, 1895, by The Johns Hopkins Press. 



JOHN MURPHY A CO., PRINTERS, 
BALTIMORE. 



CONTENTS. 



PAGB. 

Introduction 7 

I. Opposition to Lord Baltimore's Charter and the Dis- 
pute OVER Kent Island 8 

II. The Rise op the Puritans in Virginia and their Ex- 
pulsion under Governor Berkeley 31 

III. Puritan Supremacy in Virginia and Maryland 49 

Bibliography 65 

Is History Past Politics? By the Editor 67 



THE EARLY RELATIONS BETWEEN MARY- 
LAND AND VIRGINIA. 



Introduction. 



The purpose of this paper is to give an account of the re- 
lations between Virginia and Maryland from the settlement 
of the latter colony to the agreement between Lord Baltimore 
and the agents of Virginia in November, 1657, when Lord 
Baltimore was permitted to assume control of the government 
of his province, which had been taken out of his hands five 
years before by the commissioners of Parliament and since 
that time held by the Puritans. 

The unfriendly relations, which existed between Maryland 
and Virginia for a long period and which have been perpetu- 
ated in a local way in the boundary disputes of our own times, 
were the historic outcome of the loose and careless way in 
which the English territory in the New World was granted 
out by the King, and the want of geographical knowledge on 
the part of those who had jurisdiction over matters involved 
in the first controversies. The original grant to the Virginia 
Company included a large part of the present area of the 
United States. The territory subsequently granted to Lord 
Baltimore was, of course, carved out of this original grant to 
the Virginia Company. While the Virginians strenuously 
opposed the Maryland charter, it is not likely that any serious 
difficulty would have arisen, had it not been for Claiborne's 
settlement on Kent Island. His case was not decided in 

7 



8 Early Relations between Maryland and Virginia. [130 

England until 1638, six years after the charter of Maryland 
was granted to Cecilius Calvert. Meanwhile, in every act 
of resistance to the Proprietary of Maryland, Claiborne was 
backed by the strongest expressions of encouragement and 
approval from the King and from the Council of Virginia. 

A few years later the relations between the two colonies 
were further complicated by the expulsion of a large number 
of Puritans from Virginia and their settlement in Maryland. 
During the Protectorate, when the hand of Lord Baltimore 
was powerless, these Puritans quarreled with the Catholics and 
a state of civil war for some time prevailed. Claiborne was in 
no way responsible for this state of affairs, and although he 
was one of the commissioners appointed by Parliament for 
the reduction of the colonies to the authority of the Common- 
wealth of England, he seems to have had very little to do with 
Maryland at this period. 

•As the Puritan element in the early history of Virginia has 
been almost entirely overlooked, more space has been given to 
the history of the Puritans in that colony than would otherwise 
have been necessary. 

I. 

Opposition to Lord Baltimore's Charter and the 
Dispute over Kent Island. 

In October, 1629, George Calvert, Baron Baltimore, ar- 
rived in Virginia on his way to England from his planta- 
tion in Newfoundland. He had already addressed a letter to 
his majesty signifying his intention of asking for a grant of 
land in Virginia,^ in order that he might transfer his colony 
from Newfoundland to a more congenial climate. He was 
rather coldly received by the Virginians, who had received 
some intimation of his intention to settle in their midst. Being 

^ Maryland Archives, Council Proceedings, I, 15. 



131] Dispute over Kent Island. 9 

very zealous in their efforts to exclude Romanists from their 
colony, they tendered to him the oaths of supremacy and 
allegiance. These as a professed Catholic he could not take, 
and accordingly departed for England.^ The following brief 
entry on the Virginia Court Records is the only reminiscence 
of this visit, but it serves to illustrate the state of feeling ex- 
isting at the time in reference to this distinguished visitor. 
"Thomas Tindall to be pilloried two hours for giving my 
Lord Baltimore the lie and threatening to knock him down.^'^ 

This visit of Lord Baltimore to Virginia made the inhabit- 
ants of that colony uneasy, knowing as they did the high 
favor in which he stood at court. A petition, therefore, was 
addressed to the King, on the 30th of November, 1629, by Dr. 
John Pott, the Governor, Samuel Mathews, Roger Smith, 
and William Claiborne, members of the Council, telling of 
Lord Baltimore's visit, and asking for a confirmation of their 
rights and protection for their religion.^ 

In May of the following year Claiborne, the Secretary of 
the colony of Virginia, was sent to England for the purpose 
of preventing the confirmation of a grant of land about to be 
made to Lord Baltimore south of the Janies.^ The protest 
was successful for the time being. Lord Baltimore, however, 
did not relinquish his plan, and two years later succeeded in 
obtaining a grant north of the Potomac of as extensive a terri- 
tory, and with as ample powers of government, as he could 
have hoped for. He died in April, 1632, before the papers 
passed the seal, and the grant was confirmed to his son Cecilius 
Calvert on the 20th of June, 1632. 

Lord Baltimore's charter described the territory conveyed as 
hactenus inculta and inhabited only by savages. This was not 
true of the whole territory as Kent Island in the Chesapeake 



^ Maryland Archives, Council Proceedings, I, 16. 
* Hening, I, 552. 

•^ Maryland Archives, Council Proceedings, I, 1 6. 
^ Browne, History of Maryland, 16. 



10 Early Relations between Maryland and Virginia. [132 

had been previously settled under the Virginia government 
by William Claiborne, the Secretary of State of that colony. 
Claiborne had been for several years engaged in trading with 
the Indians along the waters of the Chesapeake and its tribu- 
taries. For this purpose licenses were issued to him by the 
Governors of Virginia in the years 1627-28-29, giving him 
ample authority to trade with the natives for corn, furs, or any 
other commodity, and to make discoveries.^ In the year 1629, 
he seems to have established a trading post on Kent Island, 
although the island was not regularly settled until two years 
later. 

Encouraged by the success of his enterprises in Chesapeake 
Bay, Claiborne decided to extend his trade beyond the limits 
of Virginia. For this purpose he entered into partnership 
with certain parties in London, Clobery and Company, and 
obtained a special license from the King, dated May 16, 1631.^ 
This license seems to have been drawn up by Sir William 
Alexander, the Scottish Secretary, under the privy seal of 
Scotland, and was obtained with a special view to carrying on 
trade with JSTova Scotia, although the New England colonies 
were also mentioned in it, and Claiborne was authorized to 
trade for corn, furs, or any other commodity, in all those parts 
of America for which patents had not already been granted 
for sole trade. Nova Scotia had been granted to Sir William 
Alexander several years before, under the Scottish seal, to be 
held of the Crown of Scotland.^ This accounts for Claiborne's 
license being issued under the seal of Scotland instead of 
England. It is hard to say just what the validity of such 
a paper was, or whether it had any validity at all. It was 
certainly equally as valid. as the grant to Sir William Alex- 
ander under the seal of Scotland,^ which was never called in 
question. It is important to note this license, because it was 

^Maryland Archives, Council Proceedings, If, 158-161, 

'J6iU, I, 19. 

3 Purchas, Vol. IV, 1 871 . * Chalmers, Annals, 212. 



133] Dispute over Kent Island. 11 

on the technicality that a paper under the seal of Scotland 
could not be argued against one under the seal of England, 
that the case was decided against Claiborne by the Commis- 
sioners of Plantations in 1638. Governor Harvey of Virginia 
also issued a license to Claiborne a few months after the one 
just referred to, authorizing him to '^go unto the plantations 
of the Dutch, or unto any English plantation/^ ^ 

In 1631 Kent Island was "planted and stocked" by 
Claiborne and his partners. The trading post was converted 
into a regular plantation. Captain William Claiborne, accord- 
ing to his own statement, "entered upon the Isle of Kent, 
unplanted by any man, but possessed by the natives of that 
country, with about 100 men and there contracted with the 
natives and bought their right, to hold of the Crown of 
England to him and his company and their heirs, and by 
force or virtue thereof William Claiborne and his company 
stood seized of the said Island." ^ There is no mention in 
the Virginia records of any formal grant to Claiborne by the 
Governor and Council, and his own language seems to imply 
that there was none, but that he based his claims solely on 
occupancy and purchase from the Indians. 

The principal objections that have been raised to Claiborne's 
title to Kent Island may be classed under two heads, (1) that 
the Virginia colony had no right to the land in question at 
the time of its settlement, as their charter had been taken away 
several years before; and (2) that, even recognizing the juris- 
diction of Virginia, Claiborne had no grant of land from the 
government of that colony, and hence that the settlement was 
merely a trading post. 

The first of these objections is untenable. The colony of 
Virginia had as much right to Kent Island, at the time it 
was settled by Claiborne, as they had to the land upon which 
they were seated at Jamestown. There was no charter for 



^ Maryland Archives, Council Proceedings, II, 163. 
""Ibid., II, 162. 



12 Early Relations between Maryland and Virginia. [134 

either, but their rights had been repeatedly confirmed by the 
King, and all rights in the colonies at this time depended abso- 
lutely upon his word. The fact that the charter of the London 
Company had been annulled did not affect the rights of the 
colony to settle lands within the territory originally comprised 
in the grants to the Company, provided such lands had not 
already been granted by the Crown to other parties. This 
principle is distinctly stated in the commission issued to Gov- 
ernor Wyatt by James I shortly after the dissolution of the 
Company in 1624,^ and again in a proclamation from Charles 
I in 1625, in explanation of the Quo Warranto proceedings.^ 
This right was also confirmed by a special letter on the sub- 
ject from the King's Council to the Governor and Council of 
Virginia, under date of July 22, 1634, in these words: "We 
do hereby authorize you to dispose of such proportions of 
lands to all those planters, being freemen, as you had power 
to do before the year 1625."^ 

In answer to the second objection it may be said that al- 
though there is no record of a grant to Claiborne, throughout 
the entire controversy with Lord Baltimore the Virginia 
Council recognized the validity of his title. It is further 
stated that there was no regular settlement on the island but 
only a trading post. Such was not the case. It appears from 
certain depositions taken in Virginia in May, 1640, in the 
case of Claiborne vs. Clobery, et al., that the island was stocked 
with between 150 and 200 cattle, that orchards and gardens 
were laid out, that mills were constructed, and that all the 
usual appurtenances of a permanent plantation were there.* It 
also appears that women were resident upon the island,^ a fact 
which has been often denied, and there is also reference made 



^ Hazard, Collection of State Papers, I, 189. 

2 Ihid., I, 203. 

'^ Chalmers, Annals, Chap. V, note 16. 

"Maryland Archives, Council Proceedings, If, 187, 196, 199, &c. 

-'Ibid., 183 and 236. 



135] Dispute over Kent Island. 13 

to a child, who was slain by the Indians.^ In the year 1632, 
the plantation was represented in the Virginia Assembly by 
Captain Nicholas Martian/ an ancestor of George Wash- 
ington.^ The minister in charge of the settlement was Rev. 
Richard James, a clergyman of the Established Church.^ 
Such was the condition of affairs when, on the 20th of June 

1632, the charter of Maryland was granted to Lord Baltimore. 
This grant called forth a loud remonstrance from the Virginia 
people.^ They protested against the division of their territory 
and the dismemberment of their colony. They claimed that 
the mere fact of the dissolution of the Company did not infringe 
the rights of the colony to lands within the former grants to 
the Company. This protest came from the colony as a whole 
and not from Claiborne, as has sometimes been stated. The 
matter was heard and answered at the Star Chamber July 3, 

1633. Their Lordships decided to "leave Lord Baltimore to 
his charter and the other parties to the course of Law.^ This 
was not a decision against Claiborne's claims to Kent Island, 
but against the wholesale claim of the colony of Virginia to 
all lands, whether vacant or settled, within their former grant. 

Claiborne and his associates, hoping no doubt that the re- 
monstrance of the Virginia colony would be effective in pre- 
venting Lord Baltimore's settlement in their territory, had 
deferred making any special plea on their own behalf until 
the result of the general decision should be known. As soon, 
however, as the decision was rendered against the claims of 
Virginia, Claiborne and his partners began to petition the 
King and Council for the protection of their interests. They 
claimed that they were not within Lord Baltimore's juris- 
diction, as his charter comprehended only unsettled lands. 



^ Maryland Archives, Council Proceedings, II, 206. 

2 Hening, I, 154. ' 

^ Virginia Magazine of History and Biography, April, 1894. 

"^ Dr. Ethan Allen, MS. Sketch of Old Kent Parish, in Whittingham Library. 

° Maryland Archives, Council Proceedings, I, 17. 

Ubid., 1,21. 



14 Early Relations behveen Marykmd and Vwginia. [136 

while they were a part of the colony of Virginia, having 
settled the island under that government before the grant to 
Lord Baltimore. The first petition was that of Sir John 
Wolstenholme and ^' other planters with Captain William 
Claiborne in Virginia/' showing that they had settled the 
island with great expense, and praying that they might enjoy 
the same svithout interruption, and that Lord Baltimore might 
settle in some other place.^ This was in November, 1633, 
just as Leonard Calvert was setting sail with the first colonists 
for Maryland. 

Before leaving England the first settlers received from Lord 
Baltimore a set of instructions by which they were to be 
governed in planting the new colony. The fifth article of 
these instructions contains directions concerning Captain 
Claiborne. Lord Baltimore seems to have taken in the situ- 
ation and to have recognized the importance of conciliating 
Claiborne. He directed his brother, upon his arrival in 
Virginia, to write to Claiborne ; invite him to an interview ; 
to tell him that his Lordship, understanding that he had 
" settled a plantation there within the precincts of his Lord- 
ship's patent,'' was '^ willing to give him all the encouragement 
he could to proceed;" and that Clobery and Company had asked 
for a grant of the island to them, " making somewhat slight 
of Captain Claiborne's interest," but that his Lordship had 
deferred the matter until he could come to an understanding 
with Claiborne. The article concludes with the command 
that if Claiborne refuses to come to him, he is to let him alone 
for the space of one year.^ Unfortunately, these instructions 
were not carried out in all particulars. 

In July preceding, the King had written to the Governor 
and Council of Virginia informing them that Lord Baltimore 
was about to settle Maryland and commanding them to treat 
him with the courtesy and respect due to a person of his rank, 

^ Maryland Archives, Council Proceedings, I, 24. 
2 Calvert Papers, 131. 



137] Dispute over Kent Island. 15 

and to allow his servants and planters to buy and transport 
to their colony such cattle and other commodities as the Vir- 
ginians could spare.^ Lord Baltimore did not conduct to 
America in person his colony, but sent it out under the com- 
mand of his brother Leonard Calvert. Leonard arrived in 
Virginia with his people in February, 1634, and remained 
there a few days in order to procure fresh supplies before pro- 
ceeding to Maryland. While in Virginia he had an interview 
with Claiborne in which he formally notified him that hence- 
forth he must consider himself a member of the Maryland 
colony and must *' relinquish all relation and dependence" 
upon Virginia. At the next meeting of the Virginia Council 
a few days later, on the i4th of March, 1634, "Claiborne 
requested the opinion of the board, how he should demean 
himself in respect of Lord Baltimore's patent and his deputies 
now seated in the Bay.'' " It was answered by the board that 
they wondered why there should be any such question made. 
That they knew no reason why they should render up the 
rights of that place of the Isle of Kent, more than any other 
formerly given to this colony by his Majesty's patent; and 
that, the right of my Lord's grant being yet undetermined in 
England, we are bound in duty and by our oaths to maintain 
the rights and privileges of this colony. Nevertheless, in all 
humble submission to his Majesty's pleasure, we resolve to 
keep and observe all good correspondence with them, no way 
doubting that they on their parts will not intrench upon the 
interests of this his Majesty's plantation." ^ Backed by the 
authority of the Governor and Council of Virginia, Claiborne 
refused to consider himself a member of the Maryland colony 
and to yield his right to trade in the waters of the Chesapeake 
without license from Lord Baltimore. 

Shortly after the Maryland colony had arrived at St. Mary's, 
charges were preferred against Claiborne by Captain Henry 



^ Maryland Archives, Council Proceedings, I, 22. 
2J6id., II, 164. 



16 Early Relations between Maryland and Virginia. [138 

Fleete to the effect that he was inciting the Indians to acts of 
hostility against the new settlement. Complaint was im- 
mediately made by the Maryland authorities to the Governor 
of Virginia, who put Claiborne under bond not to leave 
Jamestown until the charges were investigated. For this 
purpose commissioners were appointed by both governments, 
who met at Patuxent on the 20th of June, 1634, and pro- 
ceeded to examine the Chief of the Patuxents and other 
principal men as to the truth of Fleete's charges. The com- 
missioners on the part of Virginia were Samuel Mathews, 
John Utie, William Peirce, and Thomas Hinton ; those on the 
part of Maryland were George Calvert and Frederick Winter. 
Claiborne and several others were also present. The result 
was a complete vindication of Claiborne. The Chief of the 
Patuxents indignantly denied the charges, giving Captain 
Fleete the lie, and saying that if he were present he would 
tell him so to his face. He further added that he wondered 
that they should take any notice of what Fleete said, where- 
upon the Virginia commissioners, by way of explanation, said 
that the gentlemen of Maryland ^^did not know Captain 
Fleete so well as we of Virginia because they were lately come.'' ^ 
Fleete himself subsequently admitted the charges to be false, 
saying, by way of apology, that he had not made them under 
oath.^ Fleete had been a rival of Claiborne in the fur trade, 
and upon the arrival of Baltimore's colony had pursued exactly 
the opposite policy, casting in his lot with the government 
at St. Mary's. Hence it was natural for one, who upon other 
occasions gave evidence of unscrupulousness of character, to try 
to prejudice the minds of the Marylanders against his rival.^ 

^Maryland Archives, Council Proceedings, II, 164-167. 

^ Calvert Papers, 141. 

^ While allowing for his propensity to misrepresent facts when it was to 
his interest to do so, we know Fleete did good service to both colonies. Re- 
turning to Virginia he made friends with Claiborne. Some twenty years 
later these old rivals jointly petitioned the Virginia Assembly for authority 
to make discoveries towards the South and West. Fleete ended his career 
in Lancaster County, Virginia. 



139] Dispute over Kent Island. 17 

The charges against Claiborne, however, reached the ears 
of Lord Baltimore, and in September, 1634, he ordered his 
brother to seize the person" of Claiborne and to detain him a 
close prisoner at St. Mary's until his Lordship's pleasure 
might be known. Calvert was also directed to take possession, 
if possible, of the plantation on Kent Island.^ 

At first Governor Harvey of Virginia seems to have taken 
the popular side of the controversy, but after the Marylanders 
were actually settled at St. Mary's, seeing no doubt that Lord 
Baltimore's influence would ultimately prevail against all 
attacks upon his charter, he warmly espoused the cause of the 
new colony. This, as we shall see, led to an insurrection in 
Virginia the following year, the upshot of which was that 
Governor Harvey was deposed from office and sent to England. 

On the 15th of December, 1634, Lord Baltimore sent to 
Secretary Windebank to ask for a letter of thanks from the 
King to Sir John Harvey, for the assistance he had given to 
his Maryland plantation against " Claiborne's malicious be- 
havior and unlawful proceedings." He said that his planta- 
tion, then in its infancy, would be in great danger of being 
overturned, if such letters were not sent off by the ship then 
ready to sail. Three days later a private letter from Secretary 
Windebank was obtained thanking Governor Harvey and 
desiring him to ^' continue his assistance against Claiborne's 
malicious practices." About ten days later the King wrote 
to Governor Harvey, stating the reasons for his grant to Lord 
Baltimore and desiring him to continue his assistance to Mary- 
land. The tone of this letter, however, is very different from 
that of the one written by Secretary Windebank.^ There is 
no mention in it of Claiborne or his " malicious practices." 
Charles I seems to have been a staunch friend to Claiborne. 
Throughout the whole controversy the King seems to have 
been on his side, and there is not a word against Claiborne 



^ Maryland Archives, Council Proceedings, II, 168. 
2 26td, I, 25-27. 

2 



18 Early Relations between Maryland and Virginia. [140 

and his claims to Kent Island, with the exception of the pri- 
vate letter referred to above from Secretary Windebank to 
Harvey, until the decision against him by the Commissioners 
of Plantations in 1638. It is difficult to understand the cause 
of his influence with the King. 

In October, 1634, the King was petitioned by Clobery and 
Company, Claiborne's partners in London, stating that Balti- 
more was about to dispossess them of Kent Island by force. 
This petition was occasioned by Baltimore's letter of Septem- 
ber 4, to Governor Calvert, ordering him to seize the person 
of Claiborne and to take possession of the plantation. It 
drew from the King a very remarkable letter to the Governor 
and Council of Virginia, dated October 8, 1634, in which he 
says that Baltimore's interference with the planters on Kent 
Island is "contrary to justice and to the true intention of our 
grant to the said Lord : we do therefore hereby declare our 
express pleasure to be that the said planters be in no sort inter- 
rupted in their trade or plantation by him or any other in his 

right, and we prohibit as well the Lord Baltimore, 

as all other pretenders under him or otherwise to plantations 
in those parts to do them any violence, or to disturb or hinder 
them in their honest proceedings and trade there." ^ The King 
had made the grant to Lord Baltimore and he here explains 
the meaning of that grant. 

Relying upon this letter and other assurances from the King, 
and from the Council of Virginia, Claiborne continued to trade 
in the waters of the Chesapeake. On the 5th of April, 1 635, 
a pinnace from Kent Island in command of Thomas Smith was 
seized in the Patuxent River by Captain Fleete and Captain 
Humber for trading in Maryland waters without a license 
from the Proprietary. Smith showed copies of his Majesty's 
commission and the letters confirming it, but the Marylanders 
disregarded them saying they were false copies,^ and the vessel 

^ Maryland Archives, Council Proceedings, I, 29. 
'Calvert Papers, 141. 



141] Dispute over Kent Island. 19 

and goods were confiscated. This brought matters to a crisis. 
For the future Claiborne took the precaution of arming his ves- 
sels to prevent their being seized by the Maryland authorities. 
A collision soon took place, April 23, 1635, in the waters of 
the Pocomoke, between a vessel belonging to Claiborne, under 
command of Lieutenant Ratcliffe Warren, and two from St. 
Mary^s under Captain Thomas Cornwalleys. The Mary- 
landers lost one man, while on the other side Warren and two 
of his men were killed and the vessel surrendered. A second 
fight occurred on the 10th of May, also in the Pocomoke River, 
in which Thomas Smith commanded a vessel of Claiborne's, 
and more blood was shed. Claiborne's men seem to have been 
the successful parties in this fight, and they were able to main- 
tain themselves on Kent Island and continue their trade for 
two years longer. 

The news of these disturbances in Maryland reached Vir- 
ginia at a very critical time. The opposition to Maryland 
and hence to Governor Harvey, who espoused the cause of 
the new colony, had been steadily on the increase. Claiborne 
was a man of great influence in Virginia, and the charges 
brought against him and the order to seize his person had 
caused considerable indignation in that colony. Nearly all 
the Councillors were his staunch personal friends. The feeling 
of the Virginians towards the neighboring colony had become 
extremely bitter. Captain Thomas Young, w^riting from 
Jamestown, July 13, 1634, says — '^Here it is accounted a crime 
almost as heinous as treason to favor, nay, almost to speak 
well of that colony of my Lord's, and I have observed myself 
a palpable kind of strangeness and distance between those of 
the best sort in the country which have formerly been very 
familiar and loving one to another, only because the one hath 
been suspected but to have been a well-wisher to the Planta- 
tion of Maryland."^ Governor Harvey, writing to Secretary 
Windebank, December 16, 1634, says that he accounts the 

^ Streeter Papers, Appendix, p. 291, 



20 Early Relations between Maryland and Virginia. [142 

day when he did service to Lord Baltimore as the happiest of 
his life, but regrets that his authority is no longer very great, 
being limited by the council, almost all of whom are against 
him in whatever he can propose, especially if it concerns 
Maryland. It is the familiar talk of the Virginians, he says, 
*^that they would rather knock their cattle on the head than 
sell them to Maryland." He adds that he has great cause to 
suspect that this faction is nourished from England, for during 
the past summer Captain Mathews received letters from Eng- 
land, upon the reading of which he "threw his hat upon the 
ground, scratching his head, and, in a fury stamping, cried a 
pox upon Maryland."^ 

Other causes of complaint against Harvey were that he un- 
dertook to rule without his Council, appropriated public fines 
to his own use, and intrigued with the Indians.^ He had 
Claiborne turned out of office and Richard Kemp appointed 
Secretary in his place. The feelings of the people were greatly 
excited, especially in York County, where Anthony Panton, 
the minister at Kiskiack, gave expression to the popular in- 
dignation, roundly abusing Secretary Kemp, calling him " a 
jackanapes," and saying that he would shortly be turned out as 
Claiborne had been.^ Matters came to a crisis in April, 1635.* 
Another cause of complaint was the tobacco monopoly and 
Harvey enraged the people by refusing to send the protest of 
the Assembly to England. A petition to the Council for a 



^ Maryland Archives, Council Proceedings, I, 29. 

" Letter from Mathews to Sir John VVolstenholme, May 25, 1635. 

=* Kobinson MS., p. 78. 

^ The materials, from which this account of the mutiny against Harvey 
is derived, are found largely in the McDonald Papers, Vol. II, pp. 163-208, 
in the Virginia State Library. The De Jarnette Papers and the Sainsbury 
Papers, in the State Library, and the Eobinson and Randolph MSS. in the 
library of the Virginia Historical Society contain additional matter relating 
to Panton and his controversy with Kemp. The letters of Harvey and 
Mathews, giving accounts of the mutiny, are published in the Virginia 
Magazine of History and Biography, April, 1894. Kemp's account has 
never been published. 



143] Dispute over Kent Island. 21 

redress of grievances was circulated and the people assembled 
in crowds to sign it. Mathews, after relating the above men- 
tioned causes of complaint, says that Harvey *^ had reduced 
the colony to a great strait by complying with the Marylanders 
so far that between them and himself all places of trade for 
corn were shut up from them and no means left to relieve their 
wants without transgressing his commands which was very 
dangerous for any to attempt. . . . The inhabitants also un- 
derstood with indignation that the Marylanders had taken 
Captain Claiborne's pinnaces and men with the goods in them 
whereof they had made prize and shared the goods amongst 
them, which action of theirs Sir John Harvey upheld contrary 
to his Majesty's express commands." ^ The reference is to the 
seizure of the pinnace in command of Thomas Smith in the 
Patuxent, April 5. The news of the fight on the Pocomoke, 
April 23, did not reach Virginia until after the insurrection 
was over. 

On April 27, a meeting was held at the house of William 
Warren at York to petition the council against Harvey, 
at which the chief speakers were Captain Nicholas Martian, 
who had formerly represented Kent Island in the Assembly, 
Francis Pott, a brother of Dr. John Pott the former Gover- 
dor, and William English, the High Sheriff of York County. 
The next morning the Governor had the three arrested. 
When they demanded the cause of their commitment he 
answered that they should know at the gallows. The next 
day Pott was examined before the Council in regard to the 
petition he had circulated. He said that " if he had offended 
he did appeal to the King for he was sure of no justice from 
Sir John Harvey.'' Upon this he was again committed and 
the Council adjourned for that night. When they convened 
again the next day, the Governor, walking up and down the 
room in an excited manner, demanded that martial law should 
be executed against the prisoners. The Council insisted that 

^ Letter from Matliews to Sir John Wolstenholme, May 25, 1635. 



22 Early Relations between Maryland and Virginia. [144 

they should have a legal trial. The Governor then asked the 
Council if they had knowledge of the petition, or of the 
people's grievances. George Minifie replied that the chief 
grievance was the detaining of the letters of the Assembly to 
his Majesty. Whereupon Harvey, rising in a great rage, 
struck him a severe blow on the shoulder, saying, " I arrest you 
upon suspicion of treason to his Majesty. '' Then Captain Utie, 
who was nearby, laid hands on the Governor, saying, '^And we 
the like to you, Sir ! '^ Samuel Mathews, afterwards Governor, 
then took Harvey in his arms and compelled him to be seated. 
While the Governor was struggling with Mathews and Utie, 
Dr. John Pott, brother of one of the prisoners, cautioning 
Harvey's servants not to interfere, waved his hand and 50 
musketeers surrounded the house. As soon as the excitement 
had cooled down, Mathews told the Governor that the people's 
anger was beyond control unless he would consent to go to 
England to answer the complaints against him. At first 
Harvey would not hear to this, but finally agreed that if they 
would draw up their propositions in writing he would con- 
sider the matter. Two days later, finding that the insurrection 
was not confined to York County, but extended over the en- 
tire colony, he resolved to go to England, and signified his 
intention to the Council upon these conditions : (1) that they 
would select one of the Council, whom he should nominate. 
Governor until the King's pleasure should be known; (2) 
that they would swear upon the Holy Evangelists to offer no 
hostility to those of Maryland ; and (3) that Captain Mathews, 
Captain Peirce, and Mr. Minifie should likewise go to Eng- 
land. The Council would not consent to these conditions and 
Harvey was forced to yield the point. A proclamation was 
then published in the name of the Council, stating that Harvey 
would go to England and commanding all persons to disperse to 
their several homes. The Council then set at liberty the three 
prisoners, and after issuing a call for an Assembly adjourned. 
The Assembly met May 7, 1635, and, in conjunction with 
the Council, elected Captain John West of Kiskiack, a brother 



145] Dispute over Kent Island. 23 

of Lord Delaware, Governor, imtil the King's pleasure should 
be known. Harvey was sent to England in the custody of 
Francis Pott, his late prisoner, and Thomas Harwood repre- 
sentatives of the Assembly. 

This action of the Virginians in deposing his Majesty's 
representative was nothing more nor less than open rebellion, 
and Charles declared that Harvey should be sent back, '^ though 
he stay but a day." ^ Mathews, West, Utie, Peirce, and other 
leaders of the insurrection were summoned to stand trial in 
England, while Harvey and Kemp wreaked their vengeance 
on Panton, the minister at Kiskiack, who had remained in the 
colony. His goods were confiscated and he was banished from 
the colony for " mutinous, rebellious and riotous actions.'' 
But in the end the popular cause triumphed. In 1639, 
Harvey was removed from office, and Sir Francis Wyatt, who 
had before served the colony as Governor with great credit, 
succeeded him. Kemp retained his office of Secretary through 
the influence of Lord Baltimore. The sentence against Pan- 
ton was reversed and the leaders of the insurrection were re- 
stored to their estates, which had been confiscated by Harvey.^ 

When Harvey was sent to England in 1635, he said, speak- 
ing of the conduct of the Virginians, " it is to be feared that 
they intend no less than the subjection of Maryland, for whilst 
I was aboard the ship and ready to depart the colony, there 
arrived Captain William Claiborne from the Isle of Kent, 
with the news of an hostile encounter 'twixt some of his people 
and those of Maryland." ^ The new government, however, did 



^ Sainsbury Papers, Vol. Ill, p. 137. 

^ Sainsbury Papers. 

Note. — To show how imperfectly the affairs of this period of Virginia 
history have been understood, Burk, who denounces Claiborne in strong 
terms, censures Harvey for not delivering him up to the Maryland authori- 
ties, when, as a matter of fact, Harvey was himself under arrest for the 
very reason that he had taken sides with Baltimore against Claiborne. See 
Burk, History of Virginia, II, p. 40. 

^ Maryland Archives, Council Proceedings, I, 38. 



24 Early Relations between Maryland and Virginia, [146 

Dot undertake the reduction of Maryland, but recognized and 
attempted to uphold Claiborne's claims in a peaceable way. 
West, the acting Governor, writing to the Commissioners of 
Plantations in March, 1636, says: "Without infringing his 
Majesty's grant to the Lord Baltimore, we have taken the 
nearest course for avoiding of further unnatural broils between 
them of Maryland, and those of the Isle of Kent. As we find 
those of Maryland in our limits we bind them in deep bonds, 
to keep the King's peace towards those of the Isle of Kent, 
as also Captain Claiborne the Commander of the Isle of Kent 
towards those of Maryland." ^ 

In view of the unsettled state of affairs in Virginia and of 
the probability of the appointment of a new governor. Lord 
Baltimore made an attempt, early in the year 1637, to have 
himself appointed Governor of Virginia. He did not make 
the proposition openly but approached his Majesty through 
the mediation and influence of his friend Secretary Windebank. 
He offered to undertake to increase his Majesty's revenue from 
Virginia £8000 yearly, and to do this without imposing any 
additional taxes or duties.^ Whether or not he thought that 
his appointment would have such a pacifying effect upon the 
Virginians, and so promote the general prosperity of the 
colony, as to increase the King's revenue to the extent of 
£8000, is not recorded. It is possible that he may have re- 
garded this as the only solution of the Claiborne difficulty. 
However this may be, he did not receive the appointment, 
and we do not know that his Majesty ever considered the 
proposition. 

Meanwhile, there seems to have been no serious trouble 
between the Kent Islanders and the inhabitants of St. Mary's 
until December, 1637, when the island was surrendered to 
the Maryland authorities through the treachery of George 



^ Maryland Archives, Council Proceedings, I, 40. 
2 Iftid, 1,41-42. 



147] Dispute over Kent Island. 25 

Evelin.^ Evelin was sent over by Clobery and Company in the 
fall of 1 636, to look after their interests on Kent Island. Since 
the settlement of Maryland they had almost entirely neglected 
Claiborne/ fearing to risk any more capital in the venture, 
while their title to the island was in dispute. Claiborne 
carried on the trade as best he could by means of his own 
servants and resources. The disturbances which had arisen 
between him and the settlement at St. Mary's had greatly in- 
terfered with the trade and curtailed the profits therefrom. 
Clobery and Company seem to have become dissatisfied with 
the condition of things and sent over Evelin to look after 
their interests. He arrived at Kent Island in December, 
1636. At first Evelin either was or pretended to be an ardent 
supporter of Claiborne's claims to the island, and asserted 
boldly in the presence of the inhabitants that the King's com- 
mission to Claiborne and his subsequent letter in confirmation 
thereof were firm and strong against the Maryland patent.^ 
He even went so far as to use abusive language in reference 
to the Calvert family, saying that Leonard Calvert's grand- 
father had been but a grazier, while he himself was a dunce 
and blockhead at school. By such means he won the confi- 
dence of the people and probably of Claiborne himself. In 
February, 1637, a supply of servants and goods arrived from 
Clobery and Company, consigned to Evelin instead of to 
Claiborne, and with them a power of attorney for Evelin, and 
instructions to Claiborne requiring him to assign to Evelin the 
control of the servants, goods, and all property belonging to 
the joint stock, and to come to England in order to explain 
his proceedings and adjust his accounts. He was also directed 
to take an accurate inventory of their property and to require 



^ The materials for this account of the surrender of Kent Island are drawn 
from certain depositions taken in Virginia, in May, 1640, in the case of Clai- 
borne vs. Clobery et aL, obtained from the English State Paper Office, and 
published in the Maryland Archives, Council Proceedings, II, pp. 181-239. 

^ Maryland Archives, Council Proceedings, II, 193. 

Ubid., 11, 215. 



26 Eaydy Relations between Mai^yland and Virginia. [148 

of Evelin a bond for its safe keeping. Accordingly in May, 
1637, a few days before his departure for England, he offered, 
in the presence of the freemen and servants of the island, to 
surrender entire possession to Evelin, if he would give bond 
to the amount of £3000 not to alienate the island to the Mary- 
landers, and not to carry away any of the servants. This 
Evelin refused to do, saying that he wanted no assignment 
from Claiborne and would take possession whether he would 
or not.^ After a second attempt to get a bond from Evelin, 
Claiborne under protest left him in possession of the settlement 
and sailed for England. 

Now that Evelin was in full possession of the island he 
developed his plans very rapidly. Whatever his original 
intention, he now determined to unite his fortunes with the 
settlement at St. Mary's, and to effect the reduction of the 
island to the authority of Lord Baltimore. To this end he 
opened negotiations with Leonard Calvert, and instead of at- 
tending to the business of Clobery and Company occupied his 
time with visits to St. Mary's. But the subjection of the 
island was a far more difficult task than he had anticipated. 
He tried in vain to persuade the inhabitants to renounce their 
allegiance to Claiborne and to submit to the jurisdiction of 
Lord Baltimore. They could not be moved. Finally de- 
spairing of accomplishing his end by peaceful measures, he 
endeavored to persuade Leonard Calvert to reduce the island 
by force. Calvert was for some time reluctant to resort to 
force, but the importunity of Evelin at last prevailed over 
his scruples, and in December, 1637, he led an armed ex- 
pedition of about 40 men by night against the island, captured 
the fort, and succeeded in reducing the inhabitants to sub- 
mission. Evelin was appointed Commander of Kent Island 
by a Commission dated December 30, 1637. Thomas Smith 
and John Boteler, two of the principal men on the island, 
were arrested and taken prisoners to St. Mary's. 

^ Maryland Archives, Council Proceedings, II, 215-216. 



149] Dispute over Kent Island. 27 

Warrants were soon issued for the arrest of a large number 
of persons on the island, either on pretence of answering a suit 
of Clobery and Company for debt, or on charges of sedition, 
piracy, and murder. These proceedings provoked an out- 
break, and in February, 1638, while the Assembly was in 
session at St. Mary's, Calvert found it necessary to lead a 
second expedition against the island. After some days he suc- 
ceeded in again reducing it to his authority. In return for his 
services Evelin was made " Lord of the Manor of Evelinton '' 
near St. Mary's. Now that his object was accomplished he 
paid no further attention to Kent Island, but retired to his 
manor, taking with him a number,, of servants and other 
property belonging to Clobery and Claiborne, and even dig- 
ging up the fruit trees in Claiborne's garden and transporting 
them to Maryland.^ Clobery and Company had reason to 
regret the confidence they had reposed in Evelin. The re- 
duction of the island was in no way authorized by them and 
they continued to unite their petitions with Claiborne against 
Lord Baltimore. 

Upon the return of Governor Calvert from Kent Island, 
the Assembly proceeded to try Thomas Smith, who had com- 
manded Claiborne's vessel in one of the encounters on the 
Pocomoke, on an indictment for murder and piracy. As there 
were no legally organized courts, the Proprietary having 
vetoed all previous acts of the Assembly, Smith was tried 
before the bar of the House, Secretary Lewger acting as prose- 
cuting attorney. He was found guilty with only one dissenting 
voice and sentenced to be hanged. It has been stated that 
this sentence was never executed, as there is no official record 
of it. But in the depositions in the case of Claiborne vs. Clo- 
bery et al.j before alluded to, it is distinctly stated that he was 
hanged,^ together with Edward Beckler, another adherent of 
Claiborne's. 



^ Maryland Archives, Council Proceedings, II, 196 and 211. 
Ubid., 11, 187. 



28 Early Relations between Maryland and Virginia, [150 

The same Assembly, March, 1638, passed a bill of attainder 
against William Claiborne, declaring him guilty of piracy 
and murder and ^^ that he forfeit to the Lord Proprietary all 
his lands and tenements which he was seized of on the 23rd 
day of April, 1635." ^ In pursuance of this act the property 
of Claiborne on Kent and Palmer's Islands was attached and 
appropriated to the use of the Lord Proprietary.^ In view of 
the fact that the acts of this Assembly were vetoed by Lord 
Baltimore it would be interesting to know by what legal right 
Claiborne's property was confiscated. 

A few days after the passage of this bill of attainder against 
Claiborne, the Lords Commissioners of Plantations, to whom 
the various petitions of Claiborne and Lord Baltimore had 
been referred, delivered their opinion, April 4, 1638, declar- 
ing the right and title to the Isle of Kent and other places in 
question to be absolutely belonging to Lord Baltimore.^ 

A few months before this decision the King had ordered 
the Commissioners not to allow any patents, commissions, or 
letters, in any way prejudicial to Lord Baltimore, to pass the 
seal.^ The decision was given without reference to the claims 
of Virginia, or to Claiborne's plea that he was a member of 
that colony. Lord Baltimore had a charter from the King, 
and Claiborne had only a trading license under the seal of 
Scotland. Chalmers says : ^' The principle of this decision 
strikes deep into the validity of the patents of Nova Scotia, 
passed under the great seal of Scotland in 1621-25; because 
the privy Council allowed no force to a license under the privy 
signet of that kingdom when pleaded against a grant under 
the great seal of England. Yet, it is to be lamented, that 
similar adjudications have not been at all times perfectly 
uniform, and with a spirit of inconsistence which equity 



^ Maryland Archives, Proceedings of the Assembly, I, p. 23. 
- Maryland Archives, Council Proceedings, I, 76. 
^lhid.,\,n. *Ibid., 1,55. 



151] Dispute over Kent Island. 29 

reprobates, different men have received different measures 
of justice."^ 

In a similar dispute, some fifty years later, between Lord 
Baltimore and William Penn the Commissioners of Planta- 
tions went back on the principle of this decision of 1638. In 
the decision of 1685, by which half of the Delaware Peninsula 
was adjudged to Penn, they declared ^^ that the land intended to 
be granted by the Lord Baltimore's Patent was only land un- 
cultivated and inhabited by savages, and that this tract of land 
now in dispute was inhabited and planted by Christians at 
and before the date of the Lord Baltimore's Patent.''^ 

Clobery and Company made one more effort. On the 28th 
of June, 1638, more than two months after the decision, they 
addressed the following complaint to Secretary Coke : " The 
many wrongs and oppressions which we suffer from Lord 
Baltimore's people in Maryland, who have lately with armed 
men coming in the night surprised our plantation, removed 
our servants, and wholly ruinated what we had there, en- 
forceth us to renew our complaint to his Sacred Majesty." ^ 
On the 14th of July, the King wrote to Lord Baltimore, 
stating that he had referred to the Commissioners the exam- 
ination of the truth of these complaints and requiring him to 
*^ perform what our former general letter did enjoin and that 
the above named planters and their agents, may enjoy in the 
meantime their possessions, and be safe in their persons and 
goods there, without disturbance or further trouble by you or 
any of yours till that cause be decided." * On the 21st of July, 
David Morehead delivered this letter to Lord Baltimore in 
the presence of George Fletcher, Thomas Bullon, Captain 
William Claiborne, and William Bennett, and demanded an 
answer, so that instructions might be sent to his deputies by 
the ships about to sail, according to the tenor of his Majesty's 



^ Annals, 2\2. ^ Ibid., I, 77. 

^ Maryland Archives, Council Proceedings, II, 455. * Ibid., I, 78. 



30 Early Relations between Maryland and Virginia. [152 

letter. Baltimore refused to give an answer, saying that he 
would wait upon his Majesty and give him satisfaction therein.^ 

After the decision of 1638, Claiborne, having given up all 
hope of obtaining a redress of grievances in England, returned 
to Virginia, and endeavored to recover his personal property 
from the Maryland government. To this end, as it would 
have been rather unsafe for him to venture into Maryland 
himself, in view of the act of attainder passed against him two 
years before, he gave a power of attorney to George Scovell, 
August 21, 1640. To ScovelFs petition the Governor and 
Council replied, that whatever estate Captain Claiborne left 
in that province at his departure in March, 1637, was pos- 
sessed by right of forfeiture to the Lord Proprietary for certain 
crimes of piracy and murder. If the petitioner could find out 
any of the said estate not held by that right he would do well 
to inform his Lordship's attorney of it that it might be re- 
covered to his Lordship's use.^ 

Claiborne seems to have given up all idea of recovering his 
possessions in Maryland, and to have settled down quietly in 
Virginia. In 1642, Charles I appointed him Treasurer of 
Virginia for life.^ This was an attempt no doubt to conciliate 
him for the losses he had suffered in Maryland. • 

In the year 1644, while the civil war was raging in Eng- 
land, Claiborne, who had all along been closely identified with 
Samuel Mathews and the democratic element in the colony, 
determined to cast in his lot with the Parliamentary party, 
and renewed his claims to Kent Island, in the hope that they 
would be recognized now that the Protestant party was in 
power. Accordingly during the temporary absence of Gov- 
ernor Berkeley in England, he regained possession of Kent 
Island, the inhabitants of which were glad to welcome him 
back. Very little is known of his proceedings at this time, 



^ Maryland Archives, Council Proceedings, II, 174. 

2i6td., I, 92-93. 

^ Hazard, Collection of Slate Papers, I, 493. 



163] Rise of the Puritans in Virginia. 31 

but the fact of his having acquired control of the island is 
established beyond doubt.^ 

About the same time Richard Ingle, also a Parliamentarian, 
took St. Mary's, the seat of government, and forced Governor 
Calvert to flee for safety into Virginia. There is no evidence 
of any agreement between Ingle and Claiborne, although it is 
possible that there was a tacit understanding. They kept con- 
trol of Maryland for about two years. Towards the close of the 
year 1646, Calvert collected his scattered forces and with the 
assistance of Governor Berkeley, who had now returned from 
England, succeeded in recovering the lost province. Balti- 
more had the year before given up all hope of retaining Mary- 
land and had directed his brother Leonard to gather together 
whatever personal property he could and make his escape. But 
Leonard thought diflPerently, and subsequently Lord Baltimore 
himself turned Parliamentarian and thus saved his possessions. 

II. 

The Rise of the Puritans in Virginia and their 
Expulsion under Governor Berkeley. 

The first portion of this paper has been occupied with events 
of a political nature. It is now necessary to consider the 
policy of the two colonies in regard to religious matters, 
especially their treatment of the Puritans and the causes which 
led to the expulsion of a large number of them from Virginia 
and their settlement in Maryland. 

The religious element did not enter into the settlement ot 
the southern colonies in as marked a degree as it did into the 
settlejpent of JSTew England. Religion, however, was to the 
men of the seventeenth century very much a matter of course. 
The whole English nation, Cavalier and Puritan alike, clothed 
their thoughts in the language of Scripture in a way which to 

^ Maryland Archives, Provincial Court Proceedings, I, 281, 435, 458-459. 



32 Early Relations between Maryland and Virginia. [154 

us at the present day seems the veriest cant. Hence in the 
earliest charters of Virginia, although the enterprise was at 
first purely commercial, we find the strongest expression of 
religious sentiments and purposes, and a clergyman of the 
Established Church accompanied the first colony to Jamestown. 
The Anglican Church thus became established in Virginia 
and throughout the colonial era that colony was the strong- 
hold of episcopacy in this country. But it was episcopacy 
of a modified type. The American branch of the English 
Church occupied quite an anomalous position. It presented 
the paradox of an episcopal church without an episcopate. 
No Anglican bishop ever set foot upon the shores of America 
prior to the E-evolution, and the Bishop of London, whose 
jurisdiction over Virginia was recognized in a measure from 
the first by virtue of the residence of the London Company 
within his diocese, was not even represented by a commissary 
until 1689. In that year the Rev. James Blair was sent out 
with formal authority to act as commissary, and from that 
time forward some of the less important functions of the office 
of bishop were exercised by a representative. It is hardly 
necessary to add that throughout the colonial period the rites 
of ordination and confirmation were not performed in the 
colonies.^ The vestries claimed the right of presentation and 
the Governor the right of induction, but as a matter of fact 
induction rarely ever took place. It became customary for 
the vestries to hire their ministers from year to year without 
presenting them to the Governor.^ Thus church government 
in Virginia, while theoretically episcopal, was practically 
congregational. 

To the uncertainty of tenure was added another circum- 
stance, which was more or less of an obstacle in the way of 
ministers coming to the colony. This was the fact that salaries 



^ Hawks, Ecclesiastical Contributions, I, 73. 

' Campbell, History of Virginia, 278, also Bishop Perry's Collection of Papers, 
261, ff. 



155] Rise of the Puritans in Virginia. 33 

were paid in tobacco, the amount in pounds being fixed by 
statute. The bad quality of the tobacco in certain parishes 
left them almost entirely without the ministrations of the 
Established Church/ This condition of affairs, added to the 
practical independence of the vestries, favored the growth of 
dissenters, and it is a striking fact that the Puritans and after- 
wards the Quakers congregated in those parishes where the 
bad quality of the tobacco did not favor the growth of the 
Established Church. 

The governors showed their loyalty to the establishment by 
requiring the Assemblies to pass, at the beginning of each 
session, a body of statutes enjoining strict conformity to the 
rights and ordinances of the Church of England. These acts, 
which became especially strict from Harvey's time on, were 
largely formal. They were a re-echo of those passed in 
England under the influence of Archbishop Laud, and were 
intended, no doubt, to catch the eye of that zealous and all- 
powerful prelate, but there was no Laud in this country to 
secure their enforcement, so they were largely deprived of 
their severity. 

As regards the matter of religious toleration a comparison 
with the mother country and the New England colonies is 
decidedly favorable to Virginia. There is no record of the 
infliction of the death penalty in Virginia for reasons of a 
spiritual nature. 

Such being the organization of the established church in 
Virginia, it is not strange that Puritans found a refuge there 
from the persecution that was directed against them in 
England. 

About three years after the congregation of dissenters, who 
were to become famous as the Pilgrim Fathers, left England 
to seek in Holland a refuge from religious persecution, another 
little band of Puritans passed silently and unobserved to the 
new world. They were not separatists like those who went to 

^ Hugh Jones, Present State of Virginia, 106 ; Col. Byrd's Diary, 42. 

3 



34 Early Relations between Maryland and Virginia. [156 

Holland J but they escaped from their native land to avoid the 
same persecution. They reached Virginia on the 10th of May, 
1611, in company with other colonists sent out by the London 
Company under the command of Sir Thomas Dale, who had 
just been appointed High Marshall of Virginia. Dale suc- 
ceeded Lord Delaware, who had been compelled by ill health 
to leave the colony two months before. He was not com- 
missioned as Governor, but was to act as such until the arrival 
of Sir Thomas Gates. Prior to coming to Virginia, Dale, had 
served in the Netherlands as captain of an English company 
in the service of the States General. He was granted a leave 
of absence for three years in order to come to Virginia.^ He 
was thus an experienced soldier and it was no doubt for this 
reason that he was appointed High Marshall. 

As soon as Gates arrived Dale left Jamestown, accompanied 
by about 350 men, some of whom were Puritans and others 
Dutch laborers, and proceeded up the James to form a new 
settlement, named by him Henricopolis (contracted into 
Henrico) in honor of Henry, Prince of Wales. This was the 
second settlement made in Virginia. He selected for the site 
of his town a peninsula about 12 miles below the present city 
of Richmond, The river at this point makes a remarkable 
bend, and after flowing in a circuit of seven miles, returns to 
a point within 120 yards of the place of deviation. A place 
admirably adapted for defense against the Indians, Dale's 
city had three streets of well-framed houses, a handsome 
church, and the foundations of another to be built of brick, 
besides store-houses and watch-houses. On the opposite side 
of the river was a tract of land secured by forts and a palisade 
about two miles and a half in length. This tract was known 
as Hope-in-Faith, and the forts which defended it were called 
Fort Charity, Fort Elizabeth, Fort Patience, and Mount 
Malady, the last being used also as a hospital.^ These names 



^ Brown, Genesis of the U. S., 446. 

^Stith, 124. Hamor's Narrative in Smith's General History. 



157] Rise of the Puritans in Virginia. 35 

in themselves are suggestive of the Puritan origin of the 
settlers. 

Dale was accompanied by Rev. Alexander Whitaker, grate- 
fully remembered as the apostle of Virginia. He was a son 
of the distinguished Puritan divine, Dr. William Whitaker, 
Master of St. John's College and Regius Professor of Divinity 
in the University of Cambridge.^ Dr. Whitaker distinguished 
himself by controversial writings against the Church of Rome 
and took a leading part in framing the Lambeth Articles, 
w^hich were strongly Calvinistic.^ At the time that Whitaker 
the younger decided to go to Virginia, he was a graduate of 
Cambridge of five or six years standing, and in possession of 
a comfortable living in the north of England. " Without any 
persuasion, but God's and his own heart, he did voluntarily 
leave his warm nest ; and, to the wonder of his kindred and 
amazement of them that knew him, undertook this hard but 
heroical resolution to go to Virginia, and to help to bear the 
name of God unto the Gentiles." ^ 

In 1613 Whitaker went back to Jamestown with Dale, 
who was again placed in command of the colony by the return 
of Gates to England. One of his letters, dated Jamestown, 
June, 1614, to a cousin in London, is very remarkable and 
throws considerable light on the condition of the church in the 
colony. He says : ^' But I much more muse that so few of 
our English ministers, that were so hot against the surplis 
and subscription, come hither, where neither is spoken of." * 
Whitaker was drowned in the James River in the Spring of 
1617, under circumstances which have not come down to us. 



^Purchas, IV, 1770. ^Anderson, History of the Colonial Church, I, 135. 

•^ Crashaw, Introduction to Whi taker's Good Newesfrom Virginia. 

^Purchas, IV, 1771'. 

In 1613 Pocahontas married John Kolfe, and Whitaker was called upon 
to instruct her in the principles of the Christian religion, and to oflSiciate at 
her baptism and marriage. In the celebrated painting of the baptism in 
the rotunda of the Capitol at Washington, he is represented as clothed in 
the surplice which he himself tells us was not in use in Virginia. 



36 Early Relations between Maryland and Virginia. [158 

The years 1619-20-21, brought large accessions to the 
population of the colony, due to the liberal policy of the 
Company under the intelligent management of Sir Edwin 
Sandys and the Earl of Southampton. In 1619 the English 
separatists, who were then in Holland, obtained from the 
London Company, through the influence of Sandys, a patent 
authorizing them to settle in Virginia. They embarked in 
the Mayflower in 1620 and directed their course toward the 
mouth of the Hudson, then a part of Virginia. A storm, 
however, drove them out of their course and carried them to 
the north beyond the limits of the London Company's territory. 
The incident is interesting as illustrating the policy of the 
Company at this time. When a few years later the King 
was preparing to dissolve the Company and evidence was 
being collected against prominent members, it was charged 
against Sandys that he had intended to establish a free popu- 
lar state of Brownists and separatists in Virginia with himself 
and his friends at its head.^ Sandys, of course, never enter- 
tained any such idea as this, but he did undoubtedly encourage 
the emigration of Puritans to Virginia. 

About this time two Puritan settlements were begun in the 
colony, which were destined to have a considerable influence 
upon the future history of both Virginia and Maryland. 

The first, in Warrosquoyacke Shire, now Isle of Wight 
County, was commenced in 1619 by Captain Christopher 
Lawne on a creek which still bears his name. Lawne was 
a member of the first Assembly which met at Jamestown, 
June, 1619. He died the next year and his patent was re- 
newed to his associates. The name of the plantation was 
changed to Isle of Wight, from which the county afterwards 
took its name.^ 



* Appendix to 8th Report of Royal Commission on Historical MSS., 
Parts II and III, p. 45. 

^ Records of the London Company. 



159] Rise of the Puritans in Virginia, 37 

In 1621 Edward Bennett, a wealthy merchant of London, 
settled a colony of Puritans on Lawne's Creek. Bennett's 
name occurs as Deputy-Governor of the Merchant Adven- 
turers resident at Delft,^ where so many English Puritans 
flocked that it became almost a second London. At a gen- 
eral court, held November 1621, the London Company con- 
firmed a patent to Edward Bennett for having planted 200 
persons in Virginia.^ At this time 50 acres of land where 
allowed for every person transported to the colony. Bennett 
himself did not come to Virginia, but placed the plantation 
in charge of his nephews, Robert and Richard Bennett, the 
latter of whom was subsequently governor of Virginia. 
William Bennett, another relative, was the first preacher in 
charge of the settlement. 

This plantation received a severe blow from the Indian 
massacre of March, 1622. More than 50 were killed. During 
the next year 26 of those who survived the massacre died, 
leaving according to a census taken in February, 1624, 29 
whites and 4 negroes.^ The settlement prospered, however, 
in spite of these heavy losses. 

In January 1622, Captain Nathaniel Basse settled at Basse's 
Choice, in Warrosquoyacke, not far from the Bennett planta- 
tion. He received patents for transporting 100 persons.* 
Basse had been associated with Lawne in 1619. In March 
1632 he was commissioned by Governor Harvey to invite 
such of the inhabitants of New England as were dissatisfied 
with the climate to come further South and settle on Delaware 
Bay.^ None availed themselves of the invitation. The Pur- 
itans who settled in Virginia came direct from England, and 
although a number of them afterward went to New England, 
there is no evidence of any coming from New England to 
Virginia, except indeed the three preachers in 1642, whose 



^ Neill, English Colonization of America. 

* Records of the London Company. ^ Hotten, Lists of Emigrants. 

* Records of the London Company. ^ Randolph MSS., VoL III, 219. 



38 Early Relations between Maryland and Virginia. [160 

stay was short. These Puritan settlements in Warrosquoyacke 
seem to have steadily increased in numbers and in 1629 they 
sent 4 burgesses to the assembly, among them Richard Ben- 
nett and Nathaniel Basse/ 

In November 1621, Daniel Gookin arrived out of Ireland 
with 50 men of his own and 30 passengers, '^ exceedingly well 
furnished with all sorts of provision and cattle,^' and planted 
himself at Newport News. He is mentioned as having under- 
taken to transport '^ great multitudes of people and cattle" to 
Virginia, and received patents for 300 people.^ After the 
massacre of 1622 the colonists were ordered to abandon the 
outlying plantations and to concentrate their forces about the 
stronger ones. Gookin^s settlement at Newport News was one 
of those ordered to be abandoned, but he refused to obey the 
order and gathering together his dependants, who amounted in 
all to only 35, remained at his post, '^ to his great credit and 
the content of his adventurers."^ 

In 1637 Gookin received a grant of 2,500 acres in Upper 
Norfolk, now Nansemond County, and in 1642 he was ap- 
pointed commander of the county. He and his son, who 
accompanied him, were both natives of Kent County, England, 
though they had traded in Ireland. They were Puritans and 
closely associated with the Bennett settlement in the adjoining 
county. 

The Puritans seem to have encountered not the slightest 
opposition on account of their religious views until the arrival 
of Governor Berkeley in 1642. The administration of Sir 
William Berkeley, one of the best known and most distin- 
guished characters of the colonial period, marks a new epoch in 
Virginia history. For more than thirty years he was the most 
conspicuous figure in the affairs of the colony, and that too 
during a period marked by events of a most striking and 
unusual character. He was a perfect type of the Cavalier, 



^Hening, I, 139. 'Kecords of the London Company. 

3 Stith, 235. 



161] Rise of the Puritans in Virginia. 39 

narrow-minded, hot-headed, out-spoken, and withal very 
zealous in his support of the Established Church. He once 
expressed the wish that the ministers in the colony would pray 
oftener and preach less, and added : " But I thank God there 
are no free schools, nor printing, and I hope we shall not have 
them these hundred years.'' The political principles and 
religious tenets of the Puritans were equally offensive to him, 
and he soon found occasion for displaying his hostility towards 
them. This was afforded by the presence in Virginia of three 
congregational preachers from New England. 

We have before alluded to the fact that the bad quality of 
the tobacco in certain parts of the colony did not favor the 
growth of the Established Church. This was especially the 
case in Nansemond County, where the Puritans were congre- 
gated. Rev. Hugh Jones, writing in 1724, says: ^^Some 
parishes are long vacant upon account of the badness of the 
tobacco, which gives room for dissenters, especially Quakers, 
as in Nansemond County.'' ^ Colonel Byrd in his Diary, 
written in 1728, confirms this statement. "We passed by no 
less than two Quaker meeting houses, one of which had an 
awkward ornament on the west end of it, that seemed to ape 
a steeple. I must own I expected no such piece of foppery, 
from a sect of so much outside simplicity. That persuasion 
prevails much in the lower end of Nansemond County, for 
want of ministers to pilot the people a decenter way to Heaven. 
The ill reputation of the tobacco in those lower parishes makes 
the clergy unwilling to accept of them, unless it be such whose 
abilities are as mean as their pay. Thus, whether the churches 
be quite void or but indifferently filled, the Quakers will have 
an opportunity of gaining proselytes. 'Tis a wonder no Popish 
missionaries are sent from Maryland to labor in this neglected 
vineyard, who we know have zeal enough to traverse sea and 
land on the meritorious errand of making converts. Nor is 

^ Present State of Virginia, 106. 



40 Early Relations between Maryland and Virginia. [162 

it less strange that some wolf in sheep's clothing arrives not 
from New England to lead astray a flock that has no shep- 
herd/'^ This last sentence is rather strange, for Colonel 
Byrd probably knew nothing of the missionary efforts of the 
New England preachers nearly a century before. These pas- 
sages were, of course, written at a much later period than 
the one under consideration, when the Quakers were quite 
numerous in that section of the colony, but they are of great 
interest as showing that the Church of England had never 
been well established there. 

Whatever the cause it is quite certain that at the time of 
Governor Berkeley's arrival in Virginia the parishes of Up- 
per Norfolk, or Nansemond as it was afterwards called, were 
vacant, and the inhabitants being more religiously inclined 
than most of the Virginians of that day, decided to appeal to 
their brethren in New England for aid. During the sum- 
mer of 1642 Philip Bennett was dispatched with letters to 
the elders at Boston. He arrived there safely in a small 
pinnace, while the General Court was in session. The letters 
were read publicly in Boston on a " Lecture Day." They 
were signed by Richard Bennett, afterwards Governor, Daniel 
Gookin, John Hill, and others, 71 in all, and dated 24th of 
May, " from Upper Norfolk in Virginia." They bewailed 
their " sad condition for the want of the means of salvation," 
and earnestly entreated a ^^ supply of faithful ministers, whom 
upon experience of their gifts and godliness they might call to 
office." After a day spent in special prayer the elders decided 
to respond to the appeal and selected three ministers. Those 
who consented to go were John Knowles of Watertown, 
William Thompson of Braintree, and Thomas James of New 
Haven. The General Court was made acquainted with the 
decision of the elders, which it approved, and on the 8th of 



^ Colonel William Byrd, History of the Dividing Line between Virginia and 
North Carolina, p. 42. 



163] Expulsion of the Puritans from Virginia. 41 

September, the Governor was ordered to commend the ministers 
to the Governor and Council of Virginia.^ 

The voyage proved a difficult one. They were wrecked off 
Hellgate and the Dutch Governor gave them " slender enter- 
tainment/' but Isaac Allerton of New Haven, who happened 
to be there, provided them with a new pinnace and they were 
enabled to continue their voyage. After encountering " much 
foul weather " they reached Virginia eleven weeks after leav- 
ing Narragansett. Winthrop says that the dangers and diffi- 
culties which continually beset them made them seriously 
doubt whether they were called of God or not, but they were 
kindly received in Virginia, not by the Governor, "but by 
some well-disposed people who desired their company." 

The letters commending them to Governor Berkeley might 
as well have been left behind, for at the first meeting of the 
Assembly, March 1643, the following act was directed against 
them. " For the preservation of the purity of doctrine and 
unity of the Church, it is enacted that all ministers whatsoever, 
which shall reside in the colony, are to be conformed to the 
orders and constitution of the Church of England, and not 
otherwise to be admitted to teach or preach publicly or 
privately, and that the Governor and Council do take care that 
all non-conformists, upon notice of them, shall be compelled 
to depart the colony with all convenience.^' ^ 

Governor Berkeley issued a proclamation in accordance with 
this act which effectually silenced the Massachusetts preachers 
and compelled them to leave the colony. James and Knowles 
were the first to go. Knowles reached Boston the latter part 
of April. He reported that their efforts had been attended 
with great success, and that " though the State did silence the 
ministers, because they would not conform to the order of 
England, yet the people resorted to them in private houses to 
hear them as before." Thompson was the last to leave. 



^ Winthrop's Journal, Mather's Magnolia, and Johnson's Wonder-working 
Providence. ^ Hening, I, 277, 



42 Early Relations between Maryland and Virginia. [164 

Cotton Mather chronicles the success in Virginia in a quaint 
poem, one stanza of which is as follows : 

"A constellation of great converts there 

Shone round him, and his heavenly glory were ; 
Gookin was one of them ; by Thompson's pains, 
Christ and New England a dear Gookin gains." 

The reference is to Daniel Gookin, Jr., whose father was 
the head of the Puritan settlement in Nansemond. Young 
Gookin, thus converted under Thompson's preaching, left 
Virginia the following year, and went to New England, where 
he soon became a man of prominence.^ 

On the 17th of April, 1644, about a year after the expul- 
sion of the New England ministers, occurred the second great 
massacre in the history of Virginia. The Indians, taking 
advantage of the disorder occasioned by the civil war in 
England, determined upon a general and concerted massacre 
of the whites. It is intimated by some historians that they 
were incited to this act by certain parties who were dissatisfied 
with Berkeley's rule, presumably the Puritans, but there is no 
foundation for such a suggestion. The Governor had set 
apart Good Friday, April 18, as a special day of prayer for 
the success of the King's party. Just on the eve of this fast- 
day the Indians made their attack, which was entirely unex- 
pected, and about 300 colonists were killed. Winthrop 
remarks that it is very observable that this calamity befell the 
Virginians shortly after they had driven out the godly min- 
isters from New England. 

Lord Baltimore, in view of these troubles and of the atti- 
tude of the Virginia government towards dissenters, made 
known through Captain Edward Gibbons, a Boston merchant 



^ Gookin resided at Cambridge and represented that town in the General 
Court. In 1651 he was Speaker of the House of Deputies, and for more 
than 30 years he Avas Superintendent of Indian Affairs, with the title of 
Major-General. He died March 19, 1687, aged 75. He was the author of 
a history of the Indians. 



165] Expulsion of the Puritans from Virginia. 43 

who traded with the southern colonies, that any nonconform- 
ists would be welcomed in Maryland and guaranteed religious 
freedom. It is not probable that any availed themselves of 
the invitation at this time. 

One of the most remarkable results of the massacre, if we 
may give full credence to the accounts that have come down 
to us, was the spiritual change which it wrought in Rev. 
Thomas Harrison, Governor Berkeley's chaplain. ^^ After 
this visitation of Providence he became quite another man." 
He expressed his regret ^^ with sorrow and concern " that, 
while he had openly encouraged the New England preachers, 
he had secretly used his influence with the Governor against 
them. But the Governor became ^^ the more hardened and 
dismissed his chaplain, who was now grown too serious for 
him." ^ Upon this Harrison crossed over the James and took 
the place of the preachers he had helped to expel in minister- 
ing to the spiritual wants of the JSTansemond Puritans. The 
Governor issued special orders against his refractory chaplain, 
and as a last resort swore at him, but all in vain. Harrison 
could not be turned aside from his purpose and he continued 
to preach to the people. 

Just at this time Berkeley was called to England, where 
the civil war was at its height. When he returned to Vir- 
ginia after a year's absence he found that colony on the verge 
of a revolution. Mathews and Claiborne had declared for 
Parliament. Claiborne and Ingle were in possession of Mary- 
land, and Governor Calvert was a fugitive in Virginia. After 
assisting Calvert to regain his lost province, Berkeley once 
more turned his attention to Harrison and the Puritan settle- 
ment south of the James. 

On the 3d of November, 1647, another act was passed 
against nonconformists. " Upon diverse information presented 
to this Assembly against several ministers for their neglects 



^ Calamy, Nonconformists' Memorial, III, 174. 



44 Early Relations between Maryland and Virginia, [166 

and refractory refusing after warning given them to read 
Common Prayer or Divine Service upon Sabbath days ... it 
is enacted that all ministers in their several cures throughout 
the colony do duly upon every Sabbath day read such prayers 
as are appointed and prescribed unto them by the said Book 
of Common Prayer.''^ 

The Puritans had felt for some time that their position was 
insecure and had seriously considered the question of leaving 
Virginia. Several letters on this subject had passed between 
Harrison and Governor Winthrop of Massachusetts. Under 
date of November 2, 1646, from Elizabeth River, Harrison 
writes : " Had your propositions found us risen up, and in a 
posture of removing, there is weight, and worth, and force 
enough in them to have staked us down again." In a second 
letter dated Nansemond, November 14, 1647, a few days after 
the passage of the act above cited, he says : " 74 have joined 
here in fellowship, 19 stand propounded, and many more of 
great hopes and expectations."^ Evidently the act of the 
Assembly had not disconcerted them. 

The next year, however, the Governor made another attempt 
to uproot this nest of dissenters. William Durand, an elder 
in the Nansemond church, and Richard Bennett were banished. 
They took refuge in Maryland. Harrison was also ordered 
to depart the colony by the third ship at furthest. He went 
to Boston to take advice of the elders there as to the best 
course for the Virginia Puritans to pursue. He reached there 
on the 20th of August, 1648, and reported that the Nansemond 
church had grown to 118 members and that by conjecture 
fully 1000 others were of like mind. He also stated that 
many of the Virginia Council were favorably disposed toward 
Puritanism.^ 



1 Hening, I, 341. 

" Massachusetts Historical Collections, Ser. IV, Vol. VII, 434. 

^ Savage's Winthrop, II, 407. 



167] Expulsion of the Puritans from Virginia. 45 

Meanwhile the Virginia Puritans had been invited by 
Captain William Sayle, afterward Governor of South Caro- 
lina, to join him in a Puritan settlement which he had begun 
in the Bahamas. But they " being very orthodox and zeal- 
ous for the truth/' as Winthrop informs us, would not decide 
the matter without advice from New England. Winthrop 
advised them strongly against leaving Virginia, " seeing that 
God had carried on his work so graciously hitherto, and that 
there was so great hope of a far more plentiful harvest at 
hand." 

Harrison returned to Virginia for a short time during the 
winter of 1649, but was soon in Boston again. ^ His congre- 
gation meanwhile petitioned the Council of State in England 
for his reinstatement, and on the 11th of October, 1649, an 
order was sent to the Governor of Virginia. 

"Sir: We are informed by the petition of some of the 
people of the congregation of Nansemond in Virginia that 
they had long enjoyed the benefit of the ministry of Mr. 
Harrison, who is an able man and of unblamable conversa- 
tion, who hath been banished by you for no other cause but 
for that he would not conform himself to the use of the Com- 
mon Prayer Book. We know that you cannot be ignorant 
that the use of the Common Prayer Book is prohibited by the 
Parliament of England, and therefore you are hereby required 
to permit the same Mr. Harrison to return to his said congre- 
gation to the exercise of his ministry, unless there be suffi- 
cient cause as shall be approved of the Parliament or this 
Council when the same shall be represented unto us. Of 
your compliance herein we expect to receive an account from 
yourself of the first opportunity. '^ ^ This letter came too late 
to be of any service, even if the old Cavalier Governor had 
been disposed to pay any attention to an order of Parliament. 



^ Massachusetts Historical Collections, Ser. IV, Vol. VII, 436. 
^Sainsbury Papers, 1640-1691, p. 19, in the Virginia State Library. 
Briggs, American Presbyterianism, app. VI. 



46 JEarly Relations bekoeen Maryland and Virginia. [168 

By the time it reached Virginia the greater part of Harrison's 
congregation had moved to Maryland.^ 

The government of that province had been reorganized 
the year before on a Protestant basis. Leonard Calvert had 
died in June 1647, a few months after he had succeeded, with 
the assistance of Governor Berkeley, in reestablishing him- 
self at St. Mary's. Upon his death bed he appointed Thomas 
Greene, a Catholic, to succeed him as Governor. Meanwhile 
Lord Baltimore, like a great many other Catholic noblemen, 
had turned Parliamentarian, in the hope that, with the over- 
throw of the Eoyalists and the Established Church, the Cath- 
olics would receive recognition and be allowed the free exer- 
cise of their religion. His position, however, was at best 
insecure, and in order to make sure of his province he reor- 
ganized it by the appointment of a Protestant Governor and 
Secretary, with a Protestant majority in the Council.^ Wil- 
liam Stone, formerly of Northampton County in Virginia, was 
appointed Governor by a commission dated August 6, 1648. 



^ Harrison is a most interesting character. Calamy {Nonconformists' 
Memorial, I, 330) says that Harrison was born at Kingston-upon-Hull and 
brought up in New England. The fact of his being Governor Berkeley's 
chaplain would seem to render this improbable. He was probably raised 
in Virginia, where there were several families of the name at an early date. 
After leaving Virginia he went to Boston. Here he married Dorothy 
Symonds, a cousin of Gov. Winthrop, and in a short time went to London, 
where he attained great distinction as a preacher. He did not, however, 
forget his old congregation, for on the 28th of July, 1652, he addressed to 
the Council of State a petition " on behalf of some well-afiected inhabitants 
of Virginia and Maryland." When Henry Cromwell was appointed Lord 
Lieutenant of Ireland, Harrison entered his service as chaplain, and upon 
the death of the Lord Protector he preaclied a funeral sermon before a 
large gathering in Christ Church Cathedral, Dublin. At the Restoration 
he returned to England, but was soon silenced by the Act of Uniformity, 
upon which he went back to Dublin and exercised his ministry as a dissen- 
ter, having a " flourishing congregation and many persons of quality for 
his constant auditors." 

^ Bozman, History of Maryland, 333. 



169] Expulsion of the Puritans from Virginia. 47 

About this time Richard Bennett and William Durand were 
banished from Virginia and took refuge in Maryland. At 
their solicitation Governor Stone invited the Nansemond 
congregation to his province, and within the next year fully 
300 Puritans migrated from the lower James to Maryland 
and settled on the Severn near the present site of Annapolis. 
They called, their settlement Providence.^ The movement did 
not take place all at once. A few families went during the 
spring and summer of 1649, and the others followed in the 
fall. The supremacy of the Puritan party in England had 
produced little effect upon Governor Berkeley, who remained 
a staunch Royalist to the end. It is probable that the execu- 
tion of Charles I. had produced somewhat of a reaction in 
Virginia. The inhabitants of that colony had in the main 
been well treated by the Stuarts, and they were not prepared 
for such extreme measures as their brethren at home, who had 
experienced all the horrors and excitement of a long civil war. 
In addition to this a number of Cavaliers came to the 
colony about this time, one ship alone, in September 1649, 
bringing over as many as 330. These, of course, had great 
influence in shaping public sentiment. Under these circum- 
stances Berkeley, knowing that Parliament was too much 
occupied for the present with domestic affairs to interfere with 
him, continued his persecution of the Puritans, and in October, 
1649, an act was passed condemning the execution of Charles 
and declaring that any one, who should undertake to defend 
the " late traiterous proceedings " against the King, should be 
adjudged accessory post factum to his death.^ Upon the 
passage of this act those Puritans who were still wavering in 
their decision quickly left the colony. In Maryland they 
were granted a large tract of land, local government, and 
religious freedom. 



^ For the further history of this settlement see, "A Puritan Colony in 
Maryland," by Daniel R. Eandall, J. H. U. Studies, 4th Series, No. VI, 1886. 
2 Hening, I, 359. 



48 Early Relations between Maryland and Virginia. [170 

It had been the policy of the Maryland government, or 
rather of the Lord Proprietary, from the first to admit 
Protestant settlers on equal terms with Catholics. The credit 
of this toleration has been claimed by Catholics and Protestants 
alike. Whatever credit is due to any one is due to the Lord 
Proprietary, Cecilius Calvert. He, however, adhered to this 
policy for political and economic and not for religious reasons. 
It may be reasonably doubted whether the exclusion of 
Protestants from an English colony would have been allowed 
under any circumstances. At any rate he did not attempt it. 
Although toleration had been the policy of the government 
from the start, it was not guaranteed by any formal document 
until the appointment of Stone, the first Protestant Governor, 
in 1648. In the oath required of him is the following clause : 
" I do further swear that I will not by myself nor any person 
directly or indirectly trouble, molest or discountenance any 
person whatsoever in the said Province professing to believe 
in Jesus Christ and in particular no Roman Catholic for or 
in respect of his or her religion.'^ ^ This principle was also 
embodied in the famous Act Concerning Religion passed by 
the Assembly on the 21st day of April, 1649. It tolerated 
only those who believed in Jesus Christ. Those who denied 
the divinity of Christ or the doctrine of the Trinity were to be 
punished with death and the forfeiture of estates. It is 
probable that a majority of this Assembly were Protestants.^ 
The act, however, did not originate with the Assembly, but 
was passed in exactly the form in which it was submitted by 
the Proprietary. This Assembly was held shortly before the 
settlement of the Puritans at Providence, and so they had 
nothing to do with it. They, however, very quickly rose to 
political prominence. At the very next Assembly, April 1650, 
James Cox, one of the two burgesses sent from Providence 



^ Maryland Archives, Council Proceedings, I, 209. 
* Bozman, History of Maryland, II, 354. 



171] Puritan Supremacy in Virginia and Maryland. 49 

was elected Speaker. The Protestants were now decidedly in 
the majority, both jn the Assembly and in the colony at large. 

III. 

Puritan Supremacy in Virginia and Maryland. 

It was not until toward the close of the year 1650 that the 
Parliament of England found itself sufficiently free from the 
more urgent demands of domestic affairs to take any steps 
towards settling the government of the colonies. In October 
1650, an act was passed prohibiting all trade or intercourse 
with Virginia or the West Indies for their " divers acts of 
rebellion," and the Council of State was given power to send 
ships to any of the plantations aforesaid and '^ to enforce all 
such to obedience, as stand in opposition to the Parliament." 
The term Virginia was still used in a very broad and indefi- 
nite sense as applying^ to any of the American colonies, and 
the expression Maryland in Virginia frequently occurs in 
documents of this period. The fears of Lord Baltimore were 
very naturally aroused at the prospect of commissioners being 
appointed to settle the affairs of the colonies, especially as 
Charles II. had been proclaimed King in Maryland, as well 
as in Barbadoes and Virginia, although it had been done 
without his knowledge or approval. He now found himself 
in an extremely awkward position. On the one hand he had 
incurred the resentment of the King, because he " did visibly 
adhere to the rebels in England, and admitted all kinds of 
sectaries and ill affected persons into his plantation." For 
these reasons his charter was annulled, so far as Charles had 
power to do so, and Sir William Davenant, the poet, was 
appointed Royal Governor of Maryland. On the other hand 
he was not quite sure of his position with Parliament, and 
reports were being circulated in his province to the effect 
that the proprietary government was about to be dissolved. 
These reports caused such uneasiness that the Puritans of 
4 



50 Early Relations between Maryland and Virginia, [172 

Providence, who had taken a very prominent part in the 
Assembly of 1650, refused to send delegates to the one to be 
held in 1651, saying that they preferred to await the action 
of Parliament. About the same time Governor Berkeley, 
who no doubt was the informant of his Majesty in regard to 
the conduct of Lord Baltimore in admittino; " all kinds ot 
sectaries and ill affected persons into his plantation," seems to 
have considered that province a fit place for encroachments, 
now that his Majesty had recalled the charter, and authorized 
Edward Scarborough of Accomac County to take possession 
of Palmer's Island, a very desirable trading post at the mouth 
of the Susquehannah, formerly held by Claiborne. 

Baltimore, howe\»er, was determined not to let the control 
of his province pass from his hands without a struggle. It 
required all the influence he could bring to bear upon the 
Council of State to prevent the name of Maryland from being 
inserted in the commissions about to be issued for the reduction 
of the colonies to the authority of Parliament. He was, how- 
ever, prepared for the issue. The protection which had been 
extended to the Puritans, and the act of toleration passed by 
the Assembly in 1649, now stood him in good stead. He 
went before the committee with a certified declaration from 
the principal Protestants in his province to the effect that they 
enjoyed entire freedom and liberty in the exercise of their re- 
ligion. The declaration was signed by the Governor and the 
three Protestant members of the Council, eight burgesses, and 
upwards of forty inhabitants of the colony.^ He also disowned 
the act of Greene in recognition of Charles II, and adduced 
the evidence of several Protestant merchants to show that 
Maryland neither was nor had been in opposition to Parlia- 
ment. The amount of political sagacity and shrewdness, 
which he displayed in reorganizing his province on a Protest- 
ant basis and recognizing by statute the principle of religious 

^ Bozman, History of Maryland, II, 672, where the declaration is given 
in full. 



173] Puritan Supremacy in Virginia and Maryland. 51 

toleration just as the top wave of the great Puritan revolution 
was carrying everything before it, is truly remarkable. He 
was in a measure successful ; the name of Maryland was stricken 
out, but in the final form in which the instructions were issued 
a circumlocution was used which practically included it. The 
paragraph alluded to is as follows : '^ Upon your arrival at 
Virginia you op any two or more of you shall use your best 
endeavors to reduce all the plantations within the Bay of 
Chesopiack to their due obedience to the Parliament of the 
Commonwealth of England." ^ This, of course, by any reason- 
able construction would be taken to include Maryland. 

The commissioners named to carry out these instructions 
were Captain Robert Denis, an officer in the Navy, who was 
put in command of the fleet, Thomas Stagge, Richard Bennett, 
and William Claiborne. In case of the death or absence of 
Captain Denis, Captain Edmund Curtis, commander of the 
frigate Guinea, was instructed to act as commissioner and 
take charge of the expedition. Bennett and Claiborne, who 
were in Virginia at the time, probably knew nothing of their 
appointment until the expedition arrived there. 

The other commissioners embarked on board two ships, 
with a force of 750 men, towards the latter part of September, 
1651. On the voyage out, the ship which bore Denis and 
Stagge with the original commission was lost. Curtis, upon 
whom the command now devolved, and who had a copy of the 
instructions, continued the voyage, touching at Barbadoes. 
Here he found that Sir George Ayscue, who had been sent 
out several months before to reduce that island, was still 
held in check by the inhabitants. After assisting him to force 
them to surrender, Captain Curtis sailed for Virginia and 
arrived before Jamestown early in March, 1652. 

Governor Berkeley, who had learned of the approach of the 
frigate, had made active preparations for resistance and was no 
doubt sincere in his intentions. He had distributed muskets 

1 Thurloe State Papers, I, 197. 



52 Early Relations between Maryland and Virginia. [174 

among the inhabitants of Jamestown and manned some Dutch 
ships that happened to be in the harbor. The maritime policy 
of England at this time was largely directed towards breaking 
up the carrying trade of the Dutch, and one of the chief objects 
in sending the expedition against the colonies was to suppress 
the illicit exportation of tobacco in Dutch ships, which, in 
spite of all restrictions, had greatly increased during the con- 
tinuance of the civil war in England. These ships were thus 
very willing to render their assistance to Governor Berkeley. 
Before carrying out such warlike measures, however, a con- 
ference was held, the Assembly was summoned, and the 
Virginians quietly decided to submit to the authority of the 
Commonwealth of England. 

The articles of surrender between the commissioners of 
Parliament and the Assembly of Virginia were concluded and 
signed, March 12, 1652. The Virginians obtained the most 
liberal terms from the commissioners. The most important 
provisions were that the act of submission should be considered 
voluntary and not forced by conquest, that there should be 
full indemnity for all past acts against Parliament, that those 
who refused to submit should have a year in which to remove 
themselves and their property from the colony, and that the 
use of the Book of Common Prayer should be permitted for 
one year.^ The fourth article is of special interest to us : 
^' That Virginia shall have and enjoy the ancient bounds and 
limits granted by the charters of the former Kings, and that 
we shall seek a new charter from the Parliament to that 
purpose against any that have intrenched upon the rights 
thereof." This, of course, was a blow at Maryland. The 
articles were signed by Richard Bennett, William Claiborne, 
and Edmund Curtis. 

Various attempts have been made, under the impression 
that the Virginians at this time were all Cavaliers, to explain 
this seemingly unaccountable conduct of Governor Berkeley 

1 Hening, I, 363. 



176] Puritan Supremacy in Virginia and Maryland. 53 

in surrendering the colony at the bidding of a single frigate. 
There is not the slightest mystery involved in the matter. 
The general misapprehension in regard to this surrender and 
the provisional government afterward established, is due to 
the fact that the strong Puritan element in the colony has 
been entirely overlooked. The more radical dissenters had, 
indeed, been driven out by Governor Berkeley, but there 
remained behind a large and influential class, who were Puri- 
tans in politics if not in religion. The Cavalier immigration, 
which has given such a romantic tinge to the entire colonial 
period, had scarcely begun at this time. Bennett was the 
leading spirit among the dissenters while Claiborne and 
Mathews, although not identified with the Puritans in relig- 
ion, had all along been the leaders of the popular party, hav- 
ing brought about the insurrection under Governor Harvey 
and deposed him from oflice, and furthermore both had 
declared for Parliament in 1644. Under these circumstances 
it is not strange that the assembly should have forced Gover- 
nor Berkeley to surrender the government into the hands of 
Bennett and Claiborne, and that such liberal terms were 
agreed upon. 

After the settlement of Virginia, the commissioners pro- 
ceeded to St. Mary's to require from the Maryland govern- 
ment the formal recognition of their authority. This was 
done in pursuance of the instructions given them to reduce 
all the plantations within the Bay of Chesapeake to the author- 
ity of Parliament. This clause certainly justified them in 
considering Maryland within the scope of their commission, 
whatever may have been the intention of the Council of State 
in England. Captains Denis and Stagge, the only two of the 
commissioners who had been present when the instructions 
were issued, were lost on the way out. Curtis, Bennett, and 
Claiborne had therefore received no verbal instructions, but 
were governed solely by the written ones. It has been stated 
by most of the Maryland historians that Bennett and Clai- 
borne took advantage of the powers loosely defined in their 



54 Early Relations between Maryland and Virginia. [176 

instructions to usurp control of the government of Mary- 
land in order to give Claiborne an opportunity to settle his 
old score with Lord Baltimore. There seems no justification 
whatever for such an opinion. Captain Curtis, the Com- 
mander of the expedition, who had no connection with the 
colonies and hence no personal interests involved, interpreted 
the instructions as including Maryland, and it was in his ship 
and under his command that Bennett and Claiborne first went 
there. Their action was subsequently confirmed by the 
authorities in England. 

Furthermore, Claiborne had nothing to expect in the way 
of support or recognition of his claims to Kent Island from 
the Puritans of Providence. He had never been identified 
with the Puritan dissenters. This is shown by the fact that 
the Assembly of 1650, which was largely Puritan, and of 
which James Cox, one of the burgesses from Providence was 
Speaker, passed an act prohibiting all compliance with Clai- 
borne under penalty of death and confiscation of property.^ 
The year before Claiborne had had some correspondence with 
Governor Stone in regard to Kent Island. 

When they reached St. Mary's the commissioners simply 
required a formal submission on the part of the Governor 
and Council "so as that they might remain in their places 
conforming themselves to the laws of the Commonwealth of 
England in point of government only and not infringing the 
Lord Baltimore's just rights." In conformity with the laws 
of England the commissioners demanded that they should 
subscribe to the engagement "to be true and faithful to the 
Commonwealth of England as it is now established without 
King or House of Lords," and that all writs and warrants 
should be issued in the name of the Keepers of the Liberty of 
England. To the first of these demands the Governor and 
Council responded that they were perfectly willing to agree, 
but in regard to the second, as writs and warrants had always 

^ Maryland Archives, Assembly Proceedings, I, 287. 



177] Puritan Supremacy in Virginia and Maryland. 55 

been issued in the name of the Lord Proprietary and not in 
the King's name, they would not consent to the change. As 
Governor Stone persisted in his refusal to submit to these de- 
mands, and the commissioners had no power to deviate from 
their instructions in this particular, Stone was deprived of 
his commission, and by a proclamation, issued on the 29th 
of March, the government of the province was vested in a 
Council, consisting of Robert Brooke, Esq., Colonel Francis 
Yardley, Mr. Job Chandler, Captain Edward Windham, Mr. 
Richard Preston, and Lieutenant Richard Banks. ^ The com- 
missioners then returned to Virginia to meet the Assembly 
which they had summoned before going to Maryland. 

The Assembly met on the 30th of April, 1652. Bennett 
was elected Governor and Claiborne was restored to his old 
place as Secretary of State. Under the provisional govern- 
ment the Governor and other officers were elected by the 
Assembly.^ Bennett was succeeded as Governor in 1655 by 
Edward Diggs. Diggs in turn was succeeded in 1656 by 
Samuel Mathews, who continued in office until his death in 
1660. Claiborne continued as Secretary throughout the whole 
Commonwealth regime. 

As soon as the affairs of the two colonies were thus satis- 
factorily settled. Captain Edmond Curtis returned to England 
with the frigate. Thus the two remaining commissioners, 
Bennett and Claiborne, were left in undisputed control of both 
colonies. Bennett was Governor of the colony from which 
he had so recently been expelled as a dissenter, and Claiborne, 
by a strange turn of fortune, found himself in virtual control 
of the province of his old rival, from which he had been 
banished years before as a traitor and convict. Both appear 
to have acted with singular moderation. Bennett, who more 
than any one else had reason for feelings of personal enmity 
to Berkeley, seems not to have displayed the least resentment. 
Berkeley was allowed to retire to his private plantation, where 

^ Maryland Archives, Council Proceedings, I, 275. '^Hening, I, 371. 



66 Early Relations between Maryland and Virginia, [178 

he remained not only during the prescribed year but all 
through the period of the provisional government, and this 
in spite of the fact that he did not take the oath of allegiance 
to the Commonwealth. Claiborne, on the other hand, in spite 
of the fact that all the civil disturbances between Catholics 
and Protestants which followed in Maryland have been fathered 
upon him, appears to have had very little to do with the 
affairs of that province. From a careful examination of the 
records, it appears that he was in Maryland only twice after 
the reduction of that province, and upon both of those 
occasions in company with Bennett in the legitimate discharge 
of his duties as commissioner. He seems to have devoted 
himself to the duties of his office as secretary and to the affairs 
of his plantation on the Pamunkey. There is nothing 
whatever to show that he interfered with the affairs of Kent 
Island at this period. The only mention of his name in that 
connection occurs in a treaty negotiated with the Indians, 
July 5, 1652, which speaks of 'Hhe Isle of Kent and 
Palmer's Island which belong to Captain Claiborne." This 
paper was signed by Kichard Bennett and four others 
appointed by the Governor and Council of Maryland to 
negotiate the treaty, and it may be that Bennett had this 
clause inserted as a mere assertion of Claiborne's claim. There 
is positive evidence, on the other hand, that the government of 
the island continued subordinate to the Maryland authorities.^ 
Towards the latter part of June, about two months after 
the departure of Captain Curtis, Bennett and Claiborne re- 
turned to Maryland. If they had usurped control of that 
province with sinister intentions through a misconstruction of 
powers, as. has been so often stated, we would naturally expect 
to find them exercising their power in an arbitrary way, now 
that they were left without any check upon their authority. 
But their conduct was the very reverse. When they reached 
St. Mary's they found that Governor Stone, whom they had 

^ Maryland Archives, Council Proceedings, I, 290, 291. 



179] Puritan Supremaey in Virginia and Maryland. 57 

deposed from office on their first visit, had reconsidered the 
matter and was now willing to accede to their demands and to 
agree to issue all writs in the name of the Keepers of the 
Liberties of England. They immediately reinstated him in his 
office and also reappointed Lord Baltimore's former Secretary, 
Thomas Hatton, by a proclamation of June 28, 1652/ 

For a while aifairs went on smoothly in Maryland, but 
towards the close of the year 1653 the relations between Stone 
and the Puritans of Providence became very strained. Stone 
imposed new oaths upon them and arbitrarily dismissed several 
of them from office. On the 3d of January, 1654, a petition 
was addressed to the commissioners by the Puritans complain- 
ing of their grievances, especially the oath, saying : *^ This 
oath we consider not agreeable to the terms on which we came 
hither, nor to the liberty of our consciences as Christians and 
free subjects of the Commonwealth of England."^ To this 
petition Bennett and Claiborne replied by letter telling them 
to remain in obedience to the Commonwealth of England. 
On the 1st of March a second petition was presented to the 
commissioners, to which they returned a like reply. About 
the same time. Stone, in direct violation of his agreement with 
them, issued a proclamation saying that henceforth all writs 
should be issued in the name of the Lord Proprietary as 
formerly. He did this at the direction of Lord Baltimore. 
This act brought Bennett and Claiborne to Maryland once 
more. On the 4th of July Stone issued a proclamation in 
which he charged the commissioners with leading the people 
'^ into faction, sedition, and rebellion against Lord Baltimore,'' 
and prepared to resist their authority. The commissioners, 
at the head of a party of Puritans from Providence and Pa- 
tuxent, then advanced towards St. Mary's and Stone consented 
to resign the government. By proclamation of July 22, 1654, 



^ Maryland Archives, Council Proceedings, I, 275. 

^ Virginia and Maryland, or Lord Baltimore's Case Answered, &c. Force 
Tracts, II, 28. 



58 Early Relations between Maryland and Virginia. [180 

the government of the province was again vested in a Council 
with William Fuller at the head. The commissioners ordered 
an Assembly to be summoned to meet on the 20th of October, 
" For which Assembly all such shall be disabled to give any 
vote or to be elected members thereof as have borne arms in 
war against the Parliament or do profess the Roman Catholic 
religion/^ ^ This was the last act of the commissioners in 
Maryland. Cromwell approved their conduct in settling the 
civil government of Maryland by a letter dated September 26, 
1655 : "It seems to us by yours of the 29th of June and by 
the relation we received by Colonel Bennett that some mistake 
or scruple hath arisen concerning the sense of our letters of 
the 12th of January last ; as if by our letters we had intimated 
that we would have a stop put to the proceedings of those 
commissioners, who were authorized to settle the civil govern- 
ment of Maryland, which was not at all intended by us, nor 
so much as proposed to us by those who made addresses to us 
to obtain our said letter ; but our intention (as our said letter 
doth plainly import) was only to prevent and forbid any force 
or violence to be offered, by either of the plantations of Vir- 
ginia or Maryland from one to the other upon the differences 
concerning their bounds, the said differences being then under 
the consideration of ourself and Council here ; which for your 
more full satisfaction we have thought fit to signify to you." ^ 
The boundary dispute referred to was over the location of 
Watkins' Point. 

The Puritan Assembly which met in October, 1654, passed 
an act concerning religion, by which toleration of the Catholic 
religion was withdrawn.^ This act was copied almost bodily 
from the one passed in England shortly before. 

When Lord Baltimore heard that Stone had again surren- 
dered the government of the province, he wrote a letter to 



^ Maryland Archives, Council Proceedings, I, 311. 

2 Thurloe State Papers, IV, 55. 

^ Maryland Archives, Proceedings of the Assembly, I, 340. 



181] Puritan Supremacy in Virginia and Maryland. 59 

hitn upbraiding him for his conduct and commanding him to 
take control of the government again. Upon this Stone 
gathered together his forces and marched against the Provi- 
dence settlement. A battle was fought on the Severn, March 
25th, 1655, in which the Puritans, under Fuller, were com- 
pletely successful, and Stone and most of his followers taken 
prisoners.^ This left the Puritans in undisputed control of 
the province. 

In July 1656, Lord Baltimore appointed Josias Fendall 
Governor, but he was Governor only in name. The Puritans 
continued in control of the province until the agreement with 
Lord Baltimore, November 30th, 1657. 

Meanwhile the Virginians had been using every effort, 
through their agent in England, Samuel Mathews, to prevent 
the government of Maryland from being again placed in the 
hands of Lord Baltimore, and even attempted to have his 
charter revoked. In the first instance the matter was referred 
by the Council of State to a Committee of the Navy, who 
reported on the 31st of December, 1652, favorably to the 
claims of Claiborne and the Virginians.^ This report was 
never acted upon. For the next five years a very bitter paper 
warfare was waged between Lord Baltimore on the one hand 
and the agents of the colony of Virginia on the other. No 
new points were brought out on either side. Lord Baltimore 
prepared his " Reasons of State Concerning Maryland in 
America,^' an attempt to show that it was to the advantage of 
the Commonwealth of England that Maryland should continue 
a separate government from Virginia, and the agents of Vir- 
ginia set forth their ^^ Objections against Lord Baltimore's 
Patent, and Reasons why the Government of Maryland should 
not be put in his hands,'' claiming (1) that the Maryland 
charter was an infringement of the rights of the colony of 



^ Bozman, History of Maryland, II, 524. 

^ Virginia and Maryland, or Lord Baltimore's Case Answered, etc., p. 20. 
Force Tracts, Vol. 2. 



60 Early Relations between Maryland and Virginia. [182 

Virginia, (2) that it comprehended only unsettled lands, 
whereas Kent Island had been settled under the Virginia 
Government " before the name of Maryland was ever heard 
of," and (3) that Lord Baltimore was a Catholic and a Royalist. 
Numerous other documents to the same effect appeared on 
both sides.^ 

In 1655, Bennett was sent over to England to assist Mathews 
in his attack upon the Maryland charter. He was succeeded 
as Governor by Diggs. The following year Diggs was also 
sent to England, and Mathews was elected to succeed him. 
Mathews was still in England at this time and he seems to 
have remained there until November, 1657, when the contro- 
versy was finally concluded and Lord Baltimore allowed to 
assume control of his province once more. 

This agreement was brought about in a rather strange way. 
Cromwell seems to have paid very little attention to the com- 
plaints and petitions of either party. They were all referred 
to the Council of State and Board of Trade, but there seemed 
no likelihood of a decision. The Protector was rather inclined 
at this time to cultivate the good will of the Catholic Peers, 
who were none of them very zealous Royalists. The agents 
of Virginia, under these circumstances, seem to have despaired 
of accomplishing the destruction of Lord Baltimore's proprie- 
tary rights, and to have thought it best to come to an agree- 
ment with him on the best terms they could secure for their 
Puritan brethren in Maryland without waiting for a decision 
from the Council of State. Bennett and Mathews thus ceased 
to act in their capacity as agents for the Virginia government, 
and in the negotiations which followed acted as the representa- 
tives of the Maryland Puritans. The settlement seems to have 
been brought about through the influence of Diggs, who acted 
as intermediary between the two parties in negotiating the 
terms. A formal paper was drawn up and signed on the 30th 



^ Thurloe State Papers, V, 482-487 ; Hazard, Collection of State Papers, I, 
620-630. 



183] Puritan Supremacy in Virginia and Maryland. 61 

of November, 1657, by Lord Baltimore, on the one side, and 
Bennett and Mathews on the other, in the presence of Edward 
Diggs, and others. The terms of the settlement were as follows : 
(1) Lord Baltimore was not to call in question any act com- 
mitted since the disturbances in the province began ; (2) the 
people in opposition were to have patents for such land as they 
could claim under Lord Baltimore's conditions of plantation ; 
and (3) Lord Baltimore promised never to give his consent to 
the repeal of the act of 1649, whereby all persons professing 
belief in Jesus Christ were allowed freedom of conscience.^ 

The Maryland Puritans accepted these terms and Puritan 
supremacy in Maryland came to an end. 

There were no civil disturbances in Virginia under the 
provisional government. In January, 1660, Governor 
Mathews died. Eichard Cromwell had resigned the Protec- 
torate several months before. There was no ruler in England 
and no governor in Virginia. There had been a reaction in 
both countries and in March, 1660, two months before the 
Restoration in England, Governor Berkeley was called upon to 
undertake once more the government of the colony, this time 
by election of the House of Burgesses. Charles II was pro- 
claimed King in Virginia in October, 1660,^ and not before 
the Restoration as has been sometimes stated. 

Under her Puritan Governors Virginia reached a high 
pitch of prosperity, and at the time of the Restoration pos- 
sessed free-trade, universal suffrage and religious freedom. 
This prosperity, however, was short-lived. Upon the Restor- 
ation the Navigation Act was enforced, the suffrage again 
limited, and severe laws against dissenters enacted. 

After the settlement with Lord Baltimore the Virginians 
seem to have become reconciled to the loss of territory invol- 
ved in the Maryland grant, and the two colonies settled down 
into relations of cordial friendship, which have seldom been 



^ Maryland Archives, Council Proceedings, I, 332. 
^ Hening, I, 626, f. n. 



62 Early Relations hetioeen Maryland and Virginia, [184 

interrupted, except in a local way over boundary disputes. 
Claiborne was compensated to some extent for his losses in 
Maryland by grants of land at various times from the Vir- 
ginia government, which amounted in the aggregate to more 
than 20,000 acres. But he never recovered from the sense of 
injustice received at the hands of the Maryland authorities. 
This is illustrated by the following incident. 

In January 1677, the commissioners who had been sent 
over to Virginia to compose the disturbances growing out of 
Bacon's rebellion, wrote to his Majesty that the independent 
provinces of Maryland and North Carolina were very pre- 
judicial to his Majesty's interests in Virginia, and recom- 
mended that the government of those provinces might be 
assumed by his Majesty.^ This seems to have kindled once 
more a spark of hope in the breast of Claiborne, who was 
now approaching the close of his life, and in March, 1677, he 
laid his claims before the commissioners, enclosing almost all- 
the papers relating to the controversy. At the same time the 
Virginia Assembly, in an address to the King, stating their 
grievances, urged the cause of Claiborne's petition, showing : 
" that the Island of Kent in Maryland, granted to, seated and 
planted, by Colonel Claiborne, Sen., formerly a limb and 
member of Virginia (as may appear by our records, they 
having sent delegates to this assembly, and divers other 
Indian proofs and evidences), is since lopt off and detained 
from us by Lord Baltimore." 

The commissioners referred Claiborne's petition to the 
King, as not being within their powers to decide, since it 
concerned another province, and we hear nothing further of it. 

Shortly after this Claiborne died in New Kent County, 
Virginia, where he had settled more than twenty years before, 
receiving a large grant of land from the Assembly on the 
Pamunkey E-iver. He organized the county and named it New 
Kent in remembrance of his old settlement in the Chesapeake. 

* Burk, History of Virginia, II, 259. 



185] Puritan Supremacy in Virginia and Maryland. 63 

While it was ordained that the interests of one man should 
be sacrificed to the future of a great and prosperous common-r 
wealth, we cannot help recognizing the strength of Claiborne's 
claims and admiring the resolution and persistency with which 
he defended them. He was thoroughly convinced of the justice 
of his cause and received for a long time the encouragement 
of his King, and always the hearty approval of the Virginians. 
In spite of the abusive epithets that have been heaped upon 
him, there is no reason why the slightest stigma should attach 
to his personal character. 

The Puritans, who played such an important part in the 
early history of Maryland and Virginia, seem not to have left 
any impression that can be directly attributed to them on the 
political institutions of either colony. In Virginia there was 
always a strong undercurrent of democracy, which cropped 
out more than once, notably in the insurrection under Harvey 
and in Bacon's rebellion nearly half a century later, but these 
popular movements cannot with any degree of confidence be 
attributed to Puritan influence. In matters of religion, on the 
other hand, we would iiaturally expect to find, in Maryland, 
at least, some survival of the influence of the Puritan settlers, 
but this nowhere appears. Their influence was probably in 
the course of time counteracted by the Catholics. 

In Virginia it w^as different. The Puritans who remained 
after the Restoration, although not radical enough to separate 
from the Established Church left, nevertheless, a profound 
impression upon that Church. If the Cavaliers outstripped 
them in numbers and political power, they certainly did not 
in spiritual force, for a spirit of moderate Puritanism con- 
tinued to dominate both the clergy and laity of the Episcopal 
Church and its influence has not yet been lost. Three quarters 
of a century after the Cavalier immigration Rev. Hugh Jones 
wrote : " In several respects the clergy are obliged to omit or 
alter some minute parts of the Liturgy, and deviate from 
the strict discipline and ceremonies of the church ; to avoid 
giving offence, through custom, or else to prevent absurdi- 



64 Early Relations between Maryland and Virginia. [186 

ties and inconsistencies. Thus surplices, disused there for 
a long time in most churches, by bad examples, careless- 
ness and indulgence, are now beginning to be brought in 
fashion, not without difficulty; and in some parishes where 
the people have been used to receive the Communion in 
their seats (a custom introduced for opportunity for such as 
are inclined to Presbytery to receive the sacrament sitting) it 
is not an easy matter to bring them to the Lord's table decently 
upon their knees." ^ Green says that '^ the habit of receiving 
the Communion in a sitting posture had been comnjon " in 
England, but was stopped by Laud, when he became Primate 
in 1633.^ It is clear that this habit had been introduced into 
Virginia by the early Puritans; for Rev. Hugh Jones wrote 
before the Presbyterian immigration had made itself felt. 
His book was written in 1724 just after an attempt on the 
part of the Bishop of London to bring the Virginia Church 
under stricter discipline.^ Surplices did not come into general 
use in Virginia until far into the present century and in some 
parishes not until within the last fifty years. The Virginia 
diocese has always claimed to be extremely low church and it 
still differs radically both in doctrine and ceremonial from 
most of the other dioceses of the same denomination. This 
conservatism, we claim, is a survival of the influence of the 
early Puritan settlers, enforced, no doubt, by the Huguenots, 
who came in later, a number of whose ministers occupied 
Episcopal parishes. 



^ Present State of Virginia, 69. 

* Green, History of the English People^ III, 159. 

3 Bishop Perry's Collection of MSS., 257, ff. 



BIBLIOGRAPHY, 



The following is a list of the most important works consulted in the 
preparation of this paper. 

Anderson, J. S. M. History of the Colonial Church. 3 vols. London, 1856. 
Archives of Maryland. William Hand Browne, Editor. Baltimore. 
Bozman, John Leeds. History of Maryland. 2 vols. Baltimore, 1837. 
Burk, John Daly. History of Virginia. 4 vols. Petersburg, 1804-16. 
Browne, William Hand. History of Maryland ( American Commonwealths) . 
Byrd, Colonel William. History of the Dividing Line (Westover MSS., 

Vol. I). Eichmond, 1866. 
Calamy, Edmund. Nonconformists' Memorial. 3 vols. London, 1802. 
Calendar of State Papers, Colonial Series, 1574-1660. W. Noel Sainsbury, 

Editor. 
Calvert Papers. Fund Publication, No. 28. Maryland Historical Society. 
Campbell, Charles. History of Virginia. Philadelphia, 1860. 
Chalmers, George. Political Annals. London, 1780. 
De Jarnette Papers. State Library, Richmond, Va. 

Hazard, Ebenezer. Collection of State Papers. 2 vols. Philadelphia, 1792. 
Hening, W. W. Statutes at Large of Virginia. Richmond, 1809-1823. 
Jones, Rev. Hugh. Present State of Virginia (Sabin Reprints). New 

York, 1865. 
London Company, Records of the (Colling wood MS.). Library of Congress, 

Washington. 
Maryland Historical Society. Fund Publications. Baltimore. 
Massachusetts Historical Society Collections. Boston. 
McDonald Papers. State Library, Richmond, Va. 
Mather, Rev. Cotton. Magnalia Christi Americana. 2 vols. Hartford, 

1855. 
Meade, Bishop William. Old Churches and Families of Virginia. 2 vols. 

Philadelphia, 1857. 
Neill, Rev. Edward D. The English Colonization of America. London, 

1871. 

The History of the Virginia Company of London. Albany, 1869, 

Virginia Vetusta. Albany, 1885. 

5 65 



66 Early Relations between Maryland and Virginia. [188 

Neill, Rev. Edward D. Virginia Carolorum. Albany, 1886. 
Purchas, Samuel. His Pilgrimes. London, 1625. ^ 

Perry, William Stevens, Bishop of Iowa. Historical Collections relating 

to the American Colonial Church, Vol. I, Virginia. Hartford, 1870. 
Randolph, MSS. 3 vols. Vols. 1 and 2, Records of the London Company ; 

Vol. 3, Miscellaneous. Library of the Virginia Historical Society, 

Richmond. 
Robinson MSS. Miscellaneous. Library of the Virginia Historical Society, 

Richmond. 
Sainsbury, W. Noel. Abstracts of Papers relating to Virginia in the Brit- 
ish State Paper Office. State Library, Richmond, Virginia. 
Smith, Captain John. General History, (reprint). Richmond, 1819. 
Slith, William. History of Virginia (Sabin Reprints). New York, 1865. 
Streeter, S. F. Papers relating to the Early History of Maryland, Fund 

Publication No. 9, Maryland Historical Society. Baltimore, 1876. 
Thurloe, John. Collections of State Papers, edited by Thomas Birch. 

7 vols. London, 1742. 
Virginia Historical Society Collections. 
Virginia Magazine of History and Biography. Philip A. Bruce, Editor. 

Richmond, Virginia. 
Winthrop, Governor John. History of New England. Edited by James 

Savage. Boston, 1853. 



IS HISTORY PAST POLITICS ?' 

By Herbert B. Adams. 



There have been frequent criticisms of Mr. Freeman's 
famous definition, "History is Past Politics, and Politics are 
Present History .'' The phrase occurs in varying forms in 
Mr. Freeman's writings,^ and was adopted as a motto for the 
Johns Hopkins University Studies in the year 1882, soon 
after the historian's visit ^ to Baltimore. The motto was 
printed not only upon the title page of our published Studies, 
but also upon the wall of our old Historical Seminary. Mr. 
Freeman kindly wrote for us an Introduction to American 
Institutional History and, by his long-continued correspond- 
ence, gave great encouragement to our work. 

Ten years after his visit to Baltimore, Mr. Freeman con- 
tributed to The Forum a review of his opinions, saying at the 
close of his article : " It is that chance proverb of mine which 
the historical students of Johns Hopkins have honored me by 
setting up over their library, it is by the application which I 
have made of it both to the events of the remotest times and 
to the events which I have seen happen in the course of sixty- 



^ A paper read in Baltimore, November 30, 1894, at the Sixth Annual 
Meeting of the Association of Colleges and Preparatory Schools in the 
Middle States and Maryland. 

^ For references, see Johns Hopkins University Studies, Vol. I, 12. 

' For an account of this visit, see Studies, Vol. I, 5-12. 

189 67 



68 Is History Past Politics f [190 

nine years, that I would fain have my life and my writings 
judged.^^ These were probably the last words addressed to 
American Jreaders by the historian of Sicily, who died at Ali- 
cante, in Spain, March 16, 1892, one month before the appear- 
ance of his last magazine article. 

A brief review of Mr. Freeman's Philosophy of History will 
serve to set our chosen motto in a clear light. He regarded 
Greek politics as the beginning of the world's state life. For 
him the Achaian League of Greek cities was the historic fore- 
runner of the Federal Union of these United States. For him 
the real life of ancient history lay '^ not in its separation from 
the affairs of our own time, but in its close connection with 
them." (Office of the Historical Professor, 41.) For him the 
records of Athenian archons and Roman consuls were essential 
parts of the same living European history as the records of 
Venetian doges and English kings. It mattered little to this 
large-hearted, broad-minded historian of Comparative Politics 
whether he was writing of free Hellas or free England, of 
Magna Graecia or the United States. He wrote political 
articles on the Eastern Question and the Danube provinces 
for the Manchester Guardian or Saturday Review in the same 
spirit in which he wrote historical essays. 

Mr. Freeman strongly believed that the main current of 
human history runs through the channel of politics. In the 
first published course of his lectures at Oxford, 1884-85, on 
"Methods of Historical Study," p. 119, he maintained that 
history is " the science or knowledge of man in his political 
character." He regarded the State as the all-comprehending 
form of human society. He used the word " political " in a 
large Greek sense. For him the Politeia or the Common- 
wealth embraced all the highest interests of man. He did not 
neglect the subjects of art and literature. Indeed, he began 
his original historical work with a study of Wells Cathedral 
in his own county, and throughout his busy life he never lost 
interest in architectural and archaeological studies. For him 
Roman art and the Palace of Diocletian were but illustrations 



191] Is History Past Politics f 69 

of Roman life and character. Civilized man lives and moves 
and has his being in civil society. Cathedrals, palaces, colleges, 
and universities are simply institutions within the State, owing 
their security and legal existence to State authority. 

Mr. Freeman regarded present politics as history in the 
making. The struggles and conflicts of the present are the 
results of historic forces. When great problems are settled by 
war, legislation or diplomacy, the facts are accepted and are 
added to the great volume of human history. Freeman carried 
this view so far that he said : " The last recorded event in the 
newspapers is, indeed, part of the history of the world. It 
may be and it should be studied in a truly historic spirit."^ 

Such was the comprehensive philosophy of the great Eng- 
lish master of history and politics. It has made a profound 
'if not a permanent impress upon the minds of many young 
Americans. It has entered into their consciousness and into 
their studies of institutional history. The motto which we 
have chosen for our published monographs and for our Semi- 
nary wall is a good working theory for students engaged in 
the investigation of laws and institutions of government. No 
representative of the Johns Hopkins University, however, 
ever maintained that all history was past politics, but only 



^ Professor Jesse Macy, in his paper read before the American Historical 
Association at Cliicago in 1893, on the Relation of History to Politics, said: 
"No other original source of history can be compared in importance with 
present politics." (See Annual Report for 1893, p. 185.) 

At the time of the American Civil War, Charles Kingsley, then professor 
of history at Cambridge, said : " I cannot see how I can be a Professor of 
past Modern History without the most careful study of the history which is 
enacting itself around me." Accordingly he proceeded to lecture on Ameri- 
can History. Mr. Freeman had the same historical impulse, but he pre- 
ferred to begin his treatment of Federal Government with the Achaian 
League. He evidently intended to include the American Union in his 
system of "Past Politics," for, upon his title-page, he mentioned ''the Dis- 
ruption of the United States" as the final limit of his work ; and he always 
insisted that Secession was Disruption. The Union was badly broken, but it 
was finally mended and preserved, and is still engaged in politics. 



70 Is History Past Politics f [192 

that some history is past politics, and the kind of history that 
we investigate is chiefly of that order. It is not out of place 
to observe, with Mr. Freeman's biographer, William Hunt, 
that *' politics are the chief determining forces in a nation's 
life, in that they control and direct the production and appli- 
cation of wealth, the habits, aspirations, and to a large extent, 
the religion of a people, and that they are, therefore, the foun- 
dation of all sound history." (From the Proceedings of the 
Somerset Archaeological and Natural History Society, Vol. 
XXXVIII : 13.) 

While politics and laws are the foundation of the upper 
strata of history, and while history itself is the deep and eter- 
nal substratum of politics, it is well to remember that there 
are some things in the world which are neither politics nor 
history. For example, individual and domestic life is neither- 
historical nor political, unless in some important way it affects 
the common life of society.^ Here lies the true distinction 
between biography and history. Froude and Carlyle were 
champions of the biographical idea in history- writing. In 
his Inaugural Address at Oxford, Froude said that the func- 
tion of the historian is to discover and make visible illustrious 
men and pay them ungrudging honor. He strongly approved 
of Carlyle's saying: ^'The history of mankind is the history 



^ Paul Lindau, in the Public Ledger (Philadelphia), November 28, 1894, 
calls attention to the interesting sociological fact that the Bismarckian 
household exhibited a type of patriarchal family life, curiously surviving 
in this nineteenth century. In this case domestic life becomes of historic 
interest. The influence of the late Princess Bismarck was indirectly and 
unconsciously political because of her relation to the Iron Chancellor in the 
days of his activity. Lindau says, " She warmed the home with the sunny 
simplicity of her nature, and when storms were raging wildly without, she 
afforded her wearied and sorely tried husband a comfortable corner wherein 
to forget the excitements and trouble of the day and to take innocent plea- 
sure in life amid the home circle, and to collect his strength for renewed 
efforts. In this way the Princess played indirectly a part in politics that 
was not unimportant, although she never sought to make her strong per- 
sonal influence felt in political questions." 



193] h History Past Politics f 71 

of its great men ; to find out these, clean the dirt from them, 
and place them on their proper pedestals, is the true function 
of the historian." Carlyle thought history the essence of in- 
numerable biographies, but it may be urged that all biogra- 
phies since the world began would not constitute history, un- 
less they recognize the all-uniting element of civil society and 
of the common life of men in connection with human institu- 
tions. No biography is of the least historical importance un- 
less it treats man in his social or civic relations. This Greek 
idea of man as a political being, of man existing in an organ- 
ized community or commonwealth, is absolutely essential to a 
proper conception of history. Indeed, we may go further and 
say with Gold win Smith : " There can be no philosophy of 
history until we realize the unity of the human race and that 
history must be studied as a whole." (Lecture on History, 
p. 46.) This is very different from Froude's doctrines that 
" what is true of a part is true of the whole " and that ^' His- 
tory is the record of individual action," both of which state- 
ments are manifestly untrue. 

Without ignoring the heroes of Froude and Carlyle, or the 
obscure annals of American local history, we of the Johns 
Hopkins University realize that the world is round and are 
inclined to go even further up the stream of Past Politics than 
did our friend and patron, Mr. Freeman. We are unwilling 
to begin our course of historical study with old Greece or 
Aryan Europe. We seek the origin of more ancient cities 
than Athens and Sparta. We wish to know the laws and 
customs of the earliest races of men. We are disposed to recog- 
nize primitive man and society as worthy of a place in the 
study of rudimentary institutions. The village community, the 
patriarchal tribe, the first communal families, are all worthy 
of historical attention. Indeed, we are not averse to the dis- 
covery of institutional germs, like marriage and government 
and economy, even in the animal world. We are accustomed 
to say that history begins with the stone axe and ends with the 
newspaper. We believe that the beginning and end of history 



72 Is History Past Politics f [194 

is man in society. As Colonel William Preston Johnston well 
said in his paper published by the American Historical Asso- 
ciation (1893, p. 47) : " Man is the first postulate of history. 
He is the beginning and the end of it. He enacts it ; he tells 
it; he accepts it as a message or gospel for guidance and self- 
realization. Man, mind, phenomena, memory, narrative — and 
history is born." Man in the State, Man as a Social Animal, 
Man living and moving in institutional groups, — this histori- 
cal conception, which is as old as Aristotle, we of the Johns 
Hopkins Historical Seminary regard as truly scientific and as 
practically modern. Its revival is due to the Renaissance of 
Greek and Roman politics in this nineteenth century. 

Let us now inquire from what historical source Freeman 
derived his notion that " History is Past Politics." The his- 
torian of the Norman Conquest received his inspiration from 
Dr. Thomas Arnold, the father of modern studies in the schools 
and colleges of England. The Headmaster of Rugby not only 
revolutionized the public school life of oar mother country in 
educational and moral ways, but he carried his Greek ideas of 
history into the University of Oxford, from which they have 
gone forth through England and America in one of those great 
intellectual movements so characteristic of modern university 
influence. 

In his Inaugural Lecture at Oxford in 1884, on the Office 
of the Historical Professor, pp. 8-9, Mr. Freeman said : " Of 
Arnold I learned what history is and how it should be studied. 
It is with a special thrill of feeling that I remember that the 
chair which I hold is his chair, that I venture to hope that my 
work in that chair may be in some sort, at whatever distance, 
to go on waging a strife which he began to wage. It was from 
him that I learned a lesson, to set forth which, in season and 
out of season, I have taken as the true work of my life. It 
was from Arnold that I first learned the truth which ought to 
be the centre and life of all our historic studies, the truth of 
the Unity of History. If I am sent hither for any special 
object, it is, I hold, to proclaim that truth, but to proclaim 



195] Is History Past Politics f 73 

it, not as my own thought, but as the thought of my great 
master/' 

From Arnold, more than from any other teacher or writer, 
Freeman learned that history is a moral lesson. In this strong 
conviction Freeman, in one respect at least, stands upon com- 
mon ground with Froude, who said of history : "It is a voice 
forever sounding across the centuries the laws of right and 
wrong. . . . Justice and truth alone endure and live. In- 
justice and falsehood may be long-lived, but doomsday comes 
at last to them, in French revolutions and other terrible 
ways." In death the two great historians of England are 
now united. Their ethical views of human history are essen- 
tially the same. Freeman said of the historian of Rome, one 
of his predecessors at Oxford : " In every page of his story, 
Arnold stands forth as the righteous judge, who, untaught by 
the more scientific historical philosophy of later days, still 
looked on crime as no less black because it was successful, 
and who could acknowledge the right even of the weak 
against the strong." Throughout his entire career as a publi- 
cist and as an historian, Freeman was the champion of liberty 
against oppression, of down-trodden Christian nationalities 
against the unspeakable Turk. 

It was from Thomas Arnold that Freeman learned the great 
lesson that the history of Greece and Rome is really nearer 
to the modern world than are many chapters of mediaeval 
history. In his lectures at Oxford, p. 62, Arnold had said 
" what is miscalled ancient history " is " the really modern 
history of the civilization of Greece and Rome." He main- 
tained that the student finds, upon classic ground, " a view of 
our own society, only somewhat simplified," like an intro- 
ductory study. (Lectures on Modern History, p. 220.) Arnold 
looked on old Greece as the springtime of the world, and upon 
Rome as the full political development of classical ideas of 
state life. The world is still moving along the imperial lines 
laid down in Church and State by the eternal city. Freeman 
regarded Rome as the source of all modern politics, the great 



74 Is History Past Politics f [196 

lake from which all streams flow. In his Inaugural Lecture 
at Oxford, p. 10, Freeman said : " Arnold was the man who 
taught that the political history of the world should be read 
as a single whole. . . . That what, in his own words, is 
* falsely called ancient history,' is, in truth, the most truly 
modern, the most truly living, the most rich in practical les- 
sons for every succeeding age.'' 

Dr. Arnold conceived of ancient history as living on in 
present society. Modern history has preserved the elements 
of earlier civilizations and have added to them. (See Lectures 
on Modern History, 46.) For Arnold, past politics were 
embryonic forms which, in modern society, have reached their 
maturity. His idea of historical politics resembles Dr. Wm. 
T. Harris' idea of education, which, for every well-trained 
scholar, should repeat the intellectual experience of his prede- 
cessors, including the Greeks and Romans, whose culture en- 
dures in our so-called liberal arts or fair humanities. Dr. 
Arnold once said that he wished we could have a history of 
present civilization written backwards. This kind of histori- 
cal knowledge would certainly be welcome to practical states- 
men and contemporary sociologists. 

It was undoubtedly from Arnold that Freeman derived his 
conception of history as past politics. Arnold was thoroughly 
imbued with the old Greek idea of the State as an organic 
unity. He defined history ^^not simply as the biography of a 
society, but, as the biography of a political society or common- 
wealth." (Lectures, 28.) For him the proper subje'ct of his- 
tory is the common life of men, which finds its natural expres- 
sion in government and civic order. He once said that the 
history of a nation's internal life is " the history of its institu- 
tions and of its laws." Under this latter term the Greeks 
included what we call institutions. The Republic and the 
Laws of Plato and Cicero represent the classical beginnings 
of modern political science. 

Thomas Arnold, the editor of Thucydides and the historian 
of Rome, was largely influenced by his classical studies, but 



197] Is History Past Politics f 7'5 

his own historical work was determined by the views of Bar- 
thold George Niebuhr/ who may be called the real founder 
of the modern science of institutional history. Niebuhr laid 
little stress upon individual characters and individual action in 
Roman history, but great emphasis upon Roman laws, insti- 
tutions, and public economy. He found significance in Roman 
farming and land tenure as well as in Roman conquest. He 
was one of the first among modern scholars to recognize the 
importance of the historic state and its constitutional develop- 
ment. He lived in the period following the French Revolu- 
tion, before which time men had endeavored to construct his- 
tory from their own imaginations and to reconstruct society 
upon preconceived principles or so-called philosophy. Niebuhr 
based his treatment of Roman history upon actual research 
and careful criticism. He too had a moral conception of the 
historian's task and endeavored to bring all the lessons of old 
Roman courage, fortitude, energy, perseverance, and manliness 
to bear upon the education and regeneration of Prussia and 
New Germany. The foundation of the historico-political 
school was laid by ISTiebuhr, Eicbhorn, Savigny, Baron vom 
Stein, George Pertz, and Gervinus during the period of Ger- 
manic reconstruction in Europe after the doM^nfall of Napo- 
leon. 



^Arnold in a letter to Chevalier Bunsen, thus expresses his profound 
indebtedness to Niebuhr for pioneer labors and cntical suggestions in the 
field of Koman history : " I need not tell you how entirely I have fed upon 
Niebuhr ; in fact I have done little more than put his first volume into a 
shape more fit for general, or at least for English readers, assuming his con- 
clusions as proved, where he was obliged to give the proof in detail. I sup- 
pose he must have shared so much of human infirmity as to have fallen 
sometimes into error ; but I confess that I do not yet know a single point 
on which I have ventured to differ from him ; and my respect for him so 
increases the more I study him, that I am likely to grow even superstitious 
in my veneration, and to be afraid of expressing my dissent even if I believe 
him to be wrong. . . . Though I deeply feel my own want of knowledge, 
yet I know of no one in England who can help me ; so little are we on a 
level with you in Germany in our attention to such points." (See Stanley's 
Life and Correspondence of Thomas Arnold, p. 269.) 



76 7s History Past Politics? [198 

The whole modern school of German and English histo- 
rians was influenced by the critical and institutional methods 
of Niebuhr. In Germany, Otfried Miiller applied Niebuhr's 
principles to the study of Dorian tribes and Hellenic states. 
Boeckh turned his attention to the public economy of Athens. 
CurtiuSj the greatest living historian of old Greece, recognizes 
his debt to Niebuhr. Ranke, the greatest of all historians, 
whether ancient or modern, spoke thus warmly of Niebuhr's 
example : " The greatest influence upon ray historical studies 
was exerted by Niebuhr's Roman history. It afforded a power- 
ful stimulus in my own investigations in ancient history, and 
it was the first German historical work which produced a pro- 
found impression upon me.'' ("Aus Leopold von Ranke's 
Lebenserinnerungen,'' Deutsche Rundschau, April, 1887, p. 
60.) Ranke extended to modern and universal history the 
principles of historical criticism which he had learned from 
Niebuhr's Rome. 

The subject of Ranke's Inaugural Lecture at the Univer- 
sity of Berlin in 1836 was " The Relation and the Difference 
between History and Politics." He clearly recognized that 
the continuity of history appears pre-eminently in States. One 
generation of men succeeds another, but States and institutions 
live. He cited the example of Venice, whose State life endured 
uninterruptedly from the decline of the Roman empire to the 
time of Napoleon. He recognized that nothing historic really 
perishes from the earth. Old institutions are merged into 
higher and more perfect forms. A new life appears, with a 
new series of historical phenomena. He too saw the intimate 
relations between past politics and present history. He said : 
" A knowledge of the past is imperfect without a knowledge 
of the present. We cannot understand the present without a 
knowledge of earlier times. The past and the present join 
hands. Neither can exist or be perfect without the other." 
(Ranke : Abhandlungen und Versuche, p. 289.) 

Ranke believed in the unity and the universality of history 
as strongly as did Freeman himself. " History is in its very 



199] Is History Past Politics f 77 

nature universal," said Ranke. His friends say that he never 
wrote anything but universal history. He treated individual 
countries, Germany, France, and England, not as isolated 
nations, but as illustrations of world-historic ideas of religion, 
freedom, law, and government, expressed or realized by indi- 
vidual European States. For Ranke as for Abelard, that 
master mind of the Middle Ages, the universal could be dis- 
cerned in the particular. Even local ^ history may be treated 
as a part of general history. Rankers first book, on the His- 
tory of Latin and Teutonic Peoples, was really a contribution 
to universal history. The last work of his life, on ^' Welt- 
geschichte," was begun at the age of ninety, and was but a 
natural supplement and philosophical rounding-out of all that 
he had done before. There is, therefore, a perfect unity be- 
tween the beginning and end of his life-long task. 

Ranke saw in history the resurrection and the immortality 
of the past. He regarded it as the historian's duty to revive 
and reconstruct past ages or past events from apparently dead 
records. In this pious labor he found the greatest joy. He 
once said : ^' He needs no pity who busies himself with these 
apparently dry studies, and renounces for their sake the plea- 
sure of many joyful days. These are dead papers, it is true ; 
but they are memorials of a life which slowly rises again before 
the mind's eye." Ranke is the best type of the truly scientific 
historian, for his principle was to tell things exactly as they 
occurred. He held strictly to the facts in the case. He did 
not attempt to preach a sermon, or point a moral, or adorn a 
tale, but simply to tell the truth as he understood it. He did 
not believe it the historian's duty to point out divine provi- 
dence in human history, as Chevalier Bunsen endeavored to 
do ; still less did Ranke proclaim with Schiller that the his- 
tory of the world is the last judgment, " Die Weltgeschichte 
ist das Weltgericht." Without presuming to be a moral cen- 



^ A good illustration of this fact may be seen in Howell's study of Lex- 
ington in his " Three Villages." 



78 Is History Past Politics f [200 

sor, Ranke endeavored to bring historic truth in all its purity 
before the eyes of the world and to avoid such false coloring 
as Sir Walter Scott and writers of the romantic school had 
given to the past. 

The conception of history as politics survives in Germany 
as it does, and will do, in England and America. William 
Maurenbrecher, in his Inaugural Address on History and 
Politics at the University of Leipzig in 1884, maintained that 
history relates more especially to politics, to men and peoples 
in civic life. While recognizing that there are other fields of 
historical inquiry beside the State, such as religion and the 
church, art and science, he urged that history proper is politi- 
cal history, which he calls the very flower of historical study. 
Without law and order and good government, there can be no 
art or science or culture within a given commonwealth. All 
the finer forces of society live and move within the limits of 
civil society. The bands which unite history and politics can- 
not be broken. History reaches its goal in politics and poli- 
tics are always the resultant of history. The two subjects are 
related like our own past and present. The living man pre- 
serves in memory and his own constitution all that has gone 
before. No tendency in politics can be called good which does 
not take into account the historical development of a given 
people. Whoever will understand the political situation of 
any State must study its past history. 

These are the views of one of the best modern academic 
leaders of German youth, of a man now dead, but his spirit 
lives in his pupils. Gustav Droysen is also dead, but his 
principles of historical science, translated into English by 
President Andrews, of Brown University, have become a 
Vade Mecum of American teachers. Droysen has perhaps the 
highest of all conceptions of history, for he calls it the self- 
consciousness of humanity, the Know Thyself of the living, 
advancing age. But he too recognizes that History is Past 
Politics, for he says, " What is Politics to-day becomes His- 
tory to-morrow." 



201] Is History Past Politics f 79 

Niebuhr's ideas of political history were transmitted to Eng- 
land through Arnold, Freeman, Goldwin Smith, and J. R. 
Seeley,^ all of whom hold to the view that History is Past 
Politics. Niebuhr's ideas of institutional history were eagerly 
caught up by that enthusiastic lover of liberty, Francis Lie- 
ber, who, returning penniless from his private expedition to 
Greece in the time of her Revolution, lived for a time as a 
tutor in Niebuhr's family at Rome. By Niebuhr's advice he 
emigrated from reactionary Prussia, first to England and then 
to America. The ripened fruit of Niebuhr's teaching may 
be seen in Lieber's writings on Civil Liberty and Political 
Ethics. Lieber's ideas of liberty were widely removed from 
the lantastic, philosophical dreams of the eighteenth century, 
and are based upon an historical study of English self-govern- 
ment. For him civil liberty meant institutional liberty. 

Francis Lieber represents the first beginnings of the historico- 
political school in American colleges and universities, where 
he always maintained that history and politics belong together. 
In South Carolina College he taught both of these subjects, 
together with Say's Political Economy. In his plan for the 
reorganization of Columbia College in New York City, he 
recommended the intimate association of historical, political, 
and economic subjects. When he was called to Columbia 
College from Columbia, South Carolina, in 1857, the follow- 
ing branches of the tree of knowledge were assigned to the 
new professor : Modern History, Political Science, Interna- 



/^ Professor J. R. Seeley, in his " Expansion of England," pp. 1, 166, thus 
states his practical and political views of history : 

" It is a favorite maxim of mine, that history, while it should be scientific 
in its method, should pursue a practical object. That is, it should not only 
gratify the reader's curiosity, but modify his view of the present and his 
forecast of the future. 

" Politics and History are only different aspects of the same study. . . . 
Politics are vulgar when they are not liberalised by history ; and history 
fades into mere literature when it loses sight of its relation to practical 
politics." 



80 7s History Past Politics f [202 

tional Law, Civil Law, and Common Law. This was about 
as comprehensive a scheme of instruction as that projected in 
the University of Michigania in 1817, when a Scotch Presby- 
terian Minister, John Monteith, was given six professorships, 
in addition to the presidency, and when Gabriel Richard, the 
Roman Catholic Bishop of Michigan Territory, was allowed 
the six remaining chairs in the faculty ! But Francis Lieber 
was right in his large conception of a new school of History, 
Politics and Law as a desirable unit in academic administra- 
tion. Modern Columbia, under the influence first of Professor 
John "W. Burgess, and now of President Low, has discovered 
the ways and means of developing a great School of Political 
Science, in which Economics, History, and Sociology find their 
proper place, all in perfect harmony with the interests of a 
special faculty of Law. 

In the reorganization of the departments of History, Politics 
and Economics at Cornell, Harvard, Michigan, and Wisconsin 
Universities, these subjects have been intimately associated. 
At the Johns Hopkins University, from the beginning in 1876, 
they have never been divided. They are still harmoniously 
grouped together, both on the graduate and undergraduate 
sides of instruction, for greater educational efficiency and for 
department unity. History, politics and economics, — these, 
together with historical jurisprudence, form the chief elements 
of our system of graduate study in the three years' course for 
the degree of Doctor of Philosophy. We shall doubtless retain 
our motto, " History is Past Politics and Politics are Present 
History," as a convenient symbol of the essential unity of all 
political and historical science, and as a pleasant souvenir of 
Mr. Freeman. 

In the attempts of college and university men to deal with 
present problems of political, social, and educational science, 
we must all stand together upon the firm ground of historical 
experience. Mere theories and speculations are unprofitable, 
whether in the domain of pedagogics, sociology, finance, or 
governmental reform. In the improvement of the existing 



203] Is History Past Politics f 81 

social order, what the world needs is historical enlightenment 
and political and social progress along existing institutional 
lines. We must preserve the continuity of our past life in the 
State, which will doubtless grow like knowledge from more 
to more. 

Frederic Harrison, in an essay maintaining that " The 
Present is ruled by the Past," well says : " The first want of 
our time is the spread amongst the intelligent body of our 
people of solid materials to form political and social opinion. 
To stimulate an interest in history seems to me the only means 
of giving a fresh meaning to popular education, and a higher 
intelligence to popular opinion.'' He asks us what is this 
unseen power, this everlasting force, which controls society ? 
^' It is the past. It is the accumulated wills and works of all 
mankind around us and before us. It is civilization. It is 
the power which to understand is strength, to repudiate which 
is weakness. Let us not think that there can be any real pro- 
gress made which is not based on a sound knowledge of the 

living institutions and the active wants of mankind 

Nothing but a thorough knowledge of the social system, based 
upon a regular study of its growth, can give us the power we 
require to affect it. For this end we need one thing above 
all — we need history, hence its pre-eminent worth in social 
education." 



THE RISE AND DEVELOPMENT 



OF THE I 



BICAMERAL SYSTEM IN AMERICA 



JOHNS HOPKINS UNIVERSITY STUDIES 

IN 

Historical and Political Science 

HERBERT B. ADAMS, Editor. 



History is Past Politics and Politics are Present History— i^Veeman. 



THIRTEENTH SERIES 
V 

THE RISE AND DEVELOPMENT 

OF THE 

BICAMERAL SYSTEM IN AMERICA 

By THOMAS FRANCIS MORAJSF, A. B., 

Fellow in History, J. H. U. 



BALTIMORE 

The Johns Hopkins Press 

PUBLISHED MONTHLY 
MAY, 1896. 



Copyright, 1895, by The Johns Hopkins Press, 



JOHN murphy & CO., PRINTERS, 
BALTIMORE. 



CONTENTS. 



lUTRODUCTIOK 7 

Chapter I. — The Rise and Development of the Bicameral System in the 
New England Colonies. Section I. — Massachusetts. Section II. — 
New Hampshire. Section III. — Connecticut. Section IV. — 
Rhode Island 8 

Chapter II. — The Bicameral System, in the Middle Colonies. Section I. 
— New Jersey. Section II. — New York. Section III. — Pennsyl- 
vania and Delaware 27 

Chapter III. — The Bicameral System in the Southern Colonies. Section I. 
; — Maryland. Section II. — Virginia. Section III. — The Carolinas. 
Section IV. — Georgia 43 

Chapter IV. — The Bicameral. System in the Federal Constitution 51 



THE RISE AND DEVELOPMENT OF THE 
BICAMERAL SYSTEM IN AMERICA. 



Introduction. 



The purpose of this study is to trace the rise and development 
of the bicameral system from its beginnings in Massachusetts 
to its incorporation into the Federal Constitution. The ac- 
knowledged importance and universal application of this 
principle of government would seem to warrant a study of the 
various steps and, in so far as may be, of the causes which led 
to its introduction into the federal and all of the state consti- 
tutions. It is not necessary at this late day to exalt the 
importance of the bicameral principle. " The division of the 
legislature into two separate and independent branches,'' says 
Kent, " is founded on such obvious principles of good policy, 
and is so strongly recommended by the unequivocal language 
of experience, that it has obtained the general approbation of 
the people of this country." ^ It is, however, no part of the 
object of this paper to discuss the advantages or disadvantages 
of the system. Its philosophic aspects have attracted the 
attention of Kent,^ Story ,^ Lieber ^ and a host of other political 
writers of eminence both in Europe and America. With this 
phase of the subject we have nothing to do. It is to the 
historical evolution of the system that we turn our attention. 

1 Commentaries, I, Sec. 222. ^ 75^^^ gg^s. 222-224. 

' Commentaries, II, 26-45. 

* Civil Liberty and Self Government, Chap. XVII. See also John Adams' 
Defence of the American Constitutions. 

7 



CHAPTER I. 

The New England Colonies. 

Section I. — Massachusetts, 

Id tracing the rise and development of the bicameral system 
in America, we naturally begin our study with Massachusetts, 
since it is here that we first find a colonial legislature consist- 
ing of two houses. In 1629 a charter was granted in England 
to the *' Governor and Company of Mattachusetts Bay in 
Newe-England." In the following year the company and their 
charter were transferred to America. In accordance with this 
patent the whole body of freemen elected annually a governor, 
deputy-governor, and eighteen assistants ^ for '' ordering of the 
generall buysines and Affaires." The legislative power, how- 
ever, resided in the general assembly of freemen. The freemen 
met four times a year for the purpose of enacting laws. This 
plan soon seemed impracticable, and, in October, 1630, the 
power of electing governor and deputy-governor and of 
enacting laws was given to the assistants. The number of 
assistants actually performing the functions of their office was 
at times as low as five. Here, then, was an incipient oligarchy. 
The natural result followed. This vast power could not be 
placed in the hands of a privileged few with impunity. In 
performing their functions of office it became necessary for 
the assistants to levy a tax. In 1631 the people of Watertown 
refused to pay the tax thus levied on the ground that it was 
" taxation without representation." The pastor, elder, and a 

* Poore's Charters and Constitutions, I, 932. . , 

8 



213] The New England Colonies. 9 

few leading members of the Watertown church, when sum- 
moned before the Governor and assistants, declared that '' it 
was not safe to pay moneys after that sort, for fear of bringing 
themselves and posterity into bondage." ^ They further say 
that they consider the government " no other but as of a 
mayor and aldermen, who have not power to make laws or 
raise taxations without the people." The assistants reply that 
the government is " rather in the nature of a parliament," and 
that the assistants, being chosen by the freemen, are their legal 
representatives, and so vested with power to levy taxes. The 
Watertown men concede the point, make a written apology 
for their obstinacy, and, according to the Journal of Governor 
Winthrop, go home apparently satisfied. Yet this protest, 
though apparently of no avail, was the origin of a very im- 
portant constitutional change. The train of ideas thus set in 
motion led to the introduction of the representative system in 
1632.^ In May of that year each town chose two deputies 
to meet in the General Court with the Governor and assistants 
and to advise with them with regard to the raising of a 
" publique stocke." ^ We have here an analogue of the English 
Parliament. In this humble legislative Assembly the germs 
of the bicameral system are plainly discernible. The assistants 
were elected by the people at large while the deputies were 
chosen by the various towns. This difference in the modes 
of election naturally led both to think of themselves as con- 
stituting two separate bodies, though they deliberated and 
voted as one. What was to be their real status ? Were they 



^ Winthrop's History of New England, J, p. 84 (Savage's edition). 

^ Neither in the Massachusetts Eecords nor Gov. Winthrop's Journal is 
there any expressed connection between the Watertown case and the intro- 
duction of the representative system, yet the general drift of the matter 
indicates that such must have been the case. Doyle, in speaking of the 
introduction of the representative system says: " We can hardly err in sup- 
posing that this was the direct result of the protest made by the men of 
Watertown." Puritan Cols., Vol. I, 106. 

' Winthrop, I, 91 ; Massachusetts Records, I, 95. 



10 The Bicameral System in America, [214 

to continue to deliberate and to vote as a single body, which 
they outwardly were, or as two separate bodies, which they 
were in reality ? The charter made no provision for the body 
of deputies, hence their relation to the assistants was not 
defined. The question was therefore left for decision to the 
unwritten law of the constitution and was decided in accord- 
ance with English precedent with which the colonists were 
of course familiar. The test case was not long in presenting 
itself. It came in 1634. In September of that year the 
people of Newtown (now Cambridge) asked the permission 
of the General Court to remove to Connecticut, Their prin- 
cipal reason for moving was that they might have more land 
for pasturage. This request naturally met with some oppo- 
sition. When the matter came to a vote the Governor, fifteen 
deputies, and two assistants voted to grant the request, while 
the Deputy-Governor, ten deputies, and ^^the rest of the 
assistants " voted to deny it.^ The number of assistants voting 
upon the question was probably seven ; hence a majority of the 
deputies voted in the affirmative, a majority of the assistants 
in the negative, and a majority (18 out of 34) of the entire 
Court, if taken as a single body, in the affirmative. The 
deputies claimed that the motion was carried, while the assist- 
ants held that it was lost. The protest of the assistants was 
entered " because there were not six assistants in the vote, as 
the patent '^ required.^ A deadlock ensued and business was 
brought to a stand-still. In order to solve the perplexing 



* Wintbrop, I, 168 ; Barry's History of Massachusetts, I, 273-4. 

^ Winthrop, 1, 168. This provision was contained in the charter. (Poore, 
Charters and Constitutions, T, 937). The charter, however, was somewhat 
modified by later legislation of the General Court. Provision was made 
in the patent for eighteen assistants, but up to 1640 their number did not 
exceed twelve. Seven of the assistants were constituted a quorum by the 
charter; but in March, 1631, after some of them had returned to England, 
the General Court resolved that when there were fewer than nine assistants 
in the colony a majority of the number so present should constitute a quo- 
rum and that their acts should be as binding as if the full number of seven 
or more were present. Massachusetts Eecords, I, 84. 



215] The New England Colonies, 11 

problem a day of fasting, humiliation, and prayer was ob- 
served ; and, after a sermon upon the subject by the Rev. John 
Cotton, " the aifairs of the court went on cheerfully." ^ The 
assistants carried their point and made good their claim, in this 
instance at least, to a negative upon the acts of the deputies. 
The victory was not a signal one, however. The turn which 
matters now took in the Newtown case no doubt diverted 
attention from the real point at issue and aided the assistants 
in sustaining their claim. Boston and Watertown ceded some 
of their land to Newtown ^ and the main cause, certainly the 
alleged one, for removal was taken away. Although the 
Newtown case was thus disposed of and a precedent established 
in favor of a negative on the part of the assistants, the rela- 
tions between the two bodies were not definitely settled and a 
clashing of authority was inevitable. Finally in 1636 the 
General Court pronounced upon the matter in the following 
terms : 

" And whereas it may fall out that in some of theis Genall 
Courts, to be holden by the magistrates & deputies, there may 
arise some difference of judgem* in doubtfull cases, it is there- 
fore ordered, that noe lawe, order, or sentence shall passe as an 
act of the Court, without the consent of the great"" pte of the 
magistrates on the one pte, & the great"" number of the depu- 
tyes on the other pte ; . . ." ^ 

This act rendered the two bodies coordinate in legislative 
authority and introduced one of the most essential features of 
the bicameral system. They continued to sit together, however, 
until 1644. The immediate cause of their separation was the 
famous case of Mrs. Sherman's pig, or, as dignified old Governor 
Hutchinson puts it, the "controversy between the two houses at 
this time was occasioned by a difference in sentiment upon the 
identity of a swine which was claimed by a poor woman as 



1 Winthrop, I, 169. 

' Massachusetts Kecords, I, 129 ; Winthrop, I, 169. 

^ Massachusetts Records, Vol. I, p. 170. 



12 The Bicameral System in America, [216 

having strayed from her some years before, and, her title being 
disputed by a person of more consequence, divided not the 
court only, but the whole country/^ ^ The case was brought 
for final hearing to the General Court and the controversy was 
much more animated than the matter at issue would seem to 
deserve. Fifteen deputies and two assistants were favorable 
to Mrs. Sherman, while eight deputies and seven assistants 
espoused the cause of Captain Keayne. Seven assistants 
refrained from voting. As an outcome of the controversy the 
General Court resolved that the two bodies should sit apart, 
that bills might originate in either, and that a bill having 
passed one house should go to the other for " assent or dissent.^' 
Bills passed by both houses were to be ^^ingrossed ^' and " read 
deliberately ^^ on the last day of the session before final assent 
was given. The reasons assigned by the General Court for 
the above resolution were that '^divers inconveniences'^ resulted 
from the sitting together of the two bodies, and that they 
accounted it the part of '^ wisdome to follow the laudable 
practice of other states who have layd groundworks for 
government & order." ^ We have here a conscious and avowed 
reversion to English precedent. As Professor Fisher justly 
remarks, " the form of government was now assimilated to the 
English model/' ^ 

William C. Morey, in speaking of the bicameral system, 
says : " It would be difficult to imagine how any institution 
could be regarded as more indigenous to the soil or more 
completely shaped by the peculiar circumstances of time and 
place than was this system as it took its rise in Massachusetts." ^ 
The system was certainly " shaped by the peculiar circum- 
stances of time and place," but can hardly be called " indige- 
nous to the soil." The system in its growth and development, 

1 Hutchinson's History of Massachusetls, 1, 135. (Ed. of 1795.) 

* Massachusetts Records, II, 58-9. 
3 Colonial Era, 113. 

* Annals of the American Academy of Political and Social Science, Sept. 
1893, p. 13. 



217] The New England Colonies. 13 

as typified by the case of Massachusetts, was essentially 
American ; but the bicameral principle did not originate on 
this side of the Atlantic, and the development of the institution 
in America was directly influenced, as we have seen, by the 
English model. The charter under which the colony was 
founded was not a complete scheme of government and it was 
repeatedly enlarged and modified by enactments of the General 
Court. Such modifications are scarcely ever made, and 
certainly were not in this case, with unanimity. When con- 
fronted with such constitutional questions the people of 
Massachusetts made such application of English precedent and 
English custom as seemed suited to the exigencies of the 
occasion. When the people of Watertown refused to pay the 
tax on the ground that they had no direct representation in the 
government, the matter was adjusted, after some delay, by 
introducing a system of town representation. Again, the 
bicameral system was resorted to as a solution of the difiiculties 
attending the Newtown case and the case of Sherman v. Keayne. 
It seems entirely probable that these great principles of gov- 
ernment would, sooner or later, have found their way into the 
American system regardless of English precedent ; but it is 
also clear that the familiarity of the colonists with the practical 
working of these institutions in England hastened their intro- 
duction into American legislatures. It must be borne in mind 
that these men were Englishmen and imbued with English 
political ideas ; and, although many of them had left England 
to escape persecution, they still believed the English govern- 
ment to be the best in the world, and hated, not the government 
itself, but its administration in the hands of the Stuarts. 

Section II. — New Hampshire. 

Although the colony of New Hampshire was founded at a 
comparatively early period, it was not until 1679 that she set 
out upon an independent governmental career. Up to this 
date the New Hampshire settlements consisting of the four 



14 The Bicameral System in America. [218 

towns of Portsmouth, Hampton, Dover, and Exeter, were 
under the jurisdiction of Massachusetts. On September 18, 
1679, however, a royal commission^ was issued by Charles II 
constituting New Hampshire a separate province and naming 
for her a president and council. John Cutts ^ was named in 
this document as president,^ and a council of six was desig- 
nated — three from Portsmouth, and one from each of the 
remaining towns. The President and Council were authorized 
to appoint three additional councillors,^ and were instructed 
to summon a general assembly. All laws passed by this 
assembly were to be submitted to the President and Council 
for approval and then sent to England for final approval or 
rejection.^ The President was empowered to recommend to 
the Assembly the passage of any laws which he thought con- 
ducive to the general welfare of the colony. The first General 
Assembly under this frame of government convened on March 
16, 1680, at Portsmouth.^ At this meeting, as at all sub- 
sequent ones, joint sessions excepted, the two branches, follow- 
ing the evident intention of the commission, sat apart.^ The 
temper of the people regarding their legislative prerogatives 
is plainly discernible in an act passed at this session by the 
Assembly and approved by the President and Council. It was 
enacted that " no Act, Imposition, Law or Ordinance be made 
or imposed upon^^ the people "but such as shall be made by 
the said Assembly and approved by the Presid*' and Councill." ^ 
It is clear that the representative Assembly was determined to 
assert itself as a very important factor in legislation. Pro- 
vision was made for meetings of the General Assembly to 



^ New Hampshire Provincial Papers, I, 373 ; Poore, Charters and Con- 
stituiions, II, 1275. 

*He is called Cutt in the Commission. 

3Prov. Papers, I, 374. *Ibid.,S75. 

*76id, 379-80. ^ Ibid., S82. 

'' See Belknap's History of New Hampshire, I, 178-9 ; also Farmer's Bel- 
knap's Hist. o/N. H, 453. 

sprov. Papers, I, 382-3; Farmer's Belknap, 453-4. 



219] The New England Colonies. 15 

be held annually at Portsmouth, on the first Tuesday in 
March.^ 

President Cutts died in 1682, and, after a short interval, 
was succeeded by Edward Cranfield. His commission ^ of May 
9, 1682, authorized him ^^ to make, constitute, and ordain laws, 
statutes and ordinances " " by and with the advice and consent 
of" the Council and Assembly, "or the major part of them 
respectively." A council of ten members was named in the 
commission and the Governor was given a negative on all laws. 
It is evident from the language above quoted from the com- 
mission that the intention was to continue the bicameral system 
in the legislature. This was done.^ The Assembly, however, 
was almost a nonentity during the iniquitous administration 
of Cranfield. Owing to a disagreement it was dissolved by 
the Governor in 1683, and the legislative power was assumed 
by the Governor and Council.^ Being in want of money the 
Governor summoned another Assembly, which met on January 
14, 1684. He submitted to them a money bill which was 
drawn up and previously passed by the Council. This method 
of originating money bills was deemed " unparliamentary " by 
the popular representatives, and the bill was promptly rejected. 
The Assembly was just as promptly dissolved, January 15.^ 
Another Assembly called in July of the same year was almost 
immediately dissolved, and was the last one in Cranfield's 
administration.^ 

Under the rule of Andros laws were enacted by the Gov- 
ernor and Council without the aid of a popular assembly. On 
April 18, 1689, after the news of the deposition of King 
James and the coronation of William and Mary reached New 
Hampshire, Andros was called upon to surrender the govern- 

1 Prov. Papers, I, 395. ^ ji^i^^ 433 

^See Belknap, I, 193. "No Journal of the House separate from the joint 
Journal of the Council and Assembly is found till 1711." Bouton in preface 
to Prov. Papers, Vol. Ill, pt. 11. 

*Belknap, I, 201. ^ Ibid., 2QZ-A. 

^Ibid., 214. 



16 The Bicameral System in America. [220 

ment.^ From this time until 1692 affairs were in a decidedly 
unsettled condition.^ Finally, on March 1, 1 692, a commission ^ 
was issued to Samuel Allen designating him as Governor. 
This commission and the instructions * issued on March 7 of 
the same year constituted a frame of government the legislative 
department of which differed in no way from that provided 
for in the commission and instructions of Governor Cranfield. 
The names of a council of ten members appear in the instruc- 
tions. It was the evident intention that the two houses should 
sit apart and constitute two co5rdinate branches of the legis- 
lature. That they did so in actual practice is evident from an 
inspection of the records.^ 

- The constitution of January 5, 1776, provided for a legis- 
lature consisting of a House of Representatives and a Council. 
The two branches were to be distinct and coordinate.^ 



Section III. — Connecticut. 

In Connecticut the development of the bicameral system 
took place not as a consequence of the jealousy existing between 
the parts of the legislative body, as was the case in Massachu- 
setts, but was due to a large extent to the harmonious relations 
existing between the assistants and deputies. 

According to the Fundamental Orders'^ of January 14, 1639, 
the legislative body, called the General Assembly or General 
Court, was to consist of the Governor, magistrates, and four 
deputies from each of the confederating towns.^ The magis- 
trates were elected by the whole body of freemen and the 
deputies by the people of the respective towns. The magis- 



1 Prov. Papers, II, pt. I, 21. ^ Ihid., II, pt. I, 30. 

3 Ihid., II, pt. I, 57. ^Ihid., II, pt. I, 63. 

* See Minutes of the Council in Prov. Papers, II, pt. 1, 109 ff.; also Journal 
of Council and Assembly in Prov. Papers, III, pt. II, 5 ff. 
6 Charters and Constitutions, II, 1279-80. 
7/6id., I, 249. 
^ Windsor, Hartford and Wethersfield. 



221] The New England Colonies. 17 

trates and deputies composed one house and were presided over 
by the Governor, who, in case of a tie, cast the deciding vote. 
The deputies were, however, authorized to meet by themselves 
at some time previous to the meeting of the General Assembly 
" to aduise and consult of all such things as may concerne the 
good of the publike." ^ This fact together with the diflPerent 
modes of election seems to foreshadow the further differentia- 
tion of functions and the eventual separation of the two bodies. 
The Fundamental Orders were succeeded by the charter of 
1662.^ It was this charter which the younger Winthrop was 
sent to secure and in the negotiation of which he was so emi- 
nently successful. The King evidently gave him all he asked 
for, and, as a consequence, this charter left little to be desired. 
In the language of Professor Johnston, it " raised the Con- 
necticut leaders to the seventh heaven of satisfaction." ^ It 
was practically a confirmation of the Fundamental Orders with 
two changes of importance, both of which were desired by the 
colonists. The number of deputies was changed to two and 
the Colony of New Haven was included. The latter pro- 
vision was as agreeable to Connecticut as it was odious to New 
Haven. The charter provided for a legislative body,— a 
governor or deputy-governor, twelve assistants, and a number 
of deputies not exceeding two from each "Place, Town, or 
City." The Governor, Deputy-Governor, and assistants were 
to be chosen by the whole body of freemen in primary assembly, 
while the deputies were to be elected by the people of their 
respective localities. All constituted one house, and that they 
dwelt together in peace and harmony — a condition of things 
quite unusual in colonial legislatures — is evidenced by a reso- 
lution of the General Court of 1678. In May of that year the 
Governor, Deputy-Governor, and assistants were constituted 
a " standing councill to issue all such occasions and matters as " 

^ Charters and Constitutions, I, 251. 
2/6id., 252-7. 

^ Genesis of a New England State, Johns Hopkins University Studies, 
Vol. I, No. 11, p. 26. 

2 



18 The Bicameral System in America. [222 

should ^*fall in in the intervalls of the Generall Court/^ ^ As the 
regular meetings of the Court took place in May and October, 
such a standing committee seemed a necessity. This resolution 
is an important step in the separation of the two bodies. It 
was, as Professor Johnston has remarked, "the prelude to the 
inevitable introduction of a bi-cameral system/^ ^ The confi- 
dence thus reposed in the assistants seems not to have been 
abused, for the authority conferred upon them in 1678 was 
regularly continued at the May and October meetings of the 
Court until 1686. At this time there arose a complication of 
affairs which placed matters of the gravest importance in the 
hands of the Governor and Council. Under date of May 27, 
1686, Edward Randolph, a royal commissioner and forerunner 
of Edmund Andros, wrote to Governor Treat and Council 
asking them to surrender their charter. He said that a writ of 
quo warranto had been issued against Connecticut, and that 
he had been intrusted with the serving of it. He would 
greatly prefer, however, he said, to have the people of Con- 
necticut gain royal favor by a voluntary surrender of their 
charter before the service of the writ. He proclaimed the 
intention of the King as being " to bring all New England 
under one GovernemY' and boldly asserted that nothing 
remained for the people of Connecticut but " an humble sub- 
mission and dutifull resignation " of their charter. He coun- 
selled haste in the matter. " S''^,'^ said he, " bless not your- 
selues w*'' vaine expectation of advantage & spinninge out 
of time by my delay : I will engage tho' the weather be warme 
the writs will keep sound and as good as when first landed.^^ ^ 

1 Colonial Records of Conn., 1678-1689, p. 15. 

^Connecticut, 269. 

' Letter of Edward Randolph to Gov. Treat and Council, in Colonial Re- 
cords of Conn., 1678-1689, pp. 352-4. 

The writs would certainly be as sound and as good as when first landed, 
for they were even then perfectly worthless. Randolph's voyage was an 
unusually long one — about six months in duration — and the time for the 
return of the writs had expired before he reached America. 



223] The New England Colonies. 19 

Governor Treat and his Councillors, however, were decidedly 
of the opinion that something did remain aside from " humble 
submission" and "dutifull resignation.'' A meeting of the 
Council was accordingly called, and on June 11, 1686, an 
answer was drafted and sent to Mr. Randolph. In this 
emergency the Governor called a special session of the General 
Court for July 6, 1686. He reported the action taken by 
himself and Council upon the receipt of Mr. Randolph's letter, 
and that action was approved.^ 

This Randolph episode was a very important incident in the 
development of the bicameral system. Heretofore, the business 
transacted by the Council in the recesses of the General Court 
was largely of a routine character, and report upon it was not 
deemed essential ; but in this case, when the very liberties of 
the colony were at stake, Governor Treat and Council deemed 
it wise and expedient to lay the whole matter before the 
General Court in special session and ask their endorsement. 
This was the beginning of a system of report and approval 
whereby all important matters passed upon by the Governor 
and Council were reviewed by the entire Court. This custom 
was, too, an important step toward the separate voting and 
separate deliberation of the two bodies. 

After approving the action of the Council the General Court 
appointed that body a committee to prepare an address upon 
the matter to the King.^ 

Mr. Randolph, finding but cold comfort in the resolute 
replies of the Council, served the writ on July 20-21, at 
midnight. Another extra session of the Court was deemed 
necessary and was called for July 28, 1686. At this meeting 
the Governor and Council were instructed to appoint an agent 
to represent the colony in England.^ Mr. William Whiting, 
a London merchant, was accordingly commissioned to act in 
this capacity. At the next meeting of the Court this action 



^Colonial Kecords of Connecticut, 1678-1689, p. 208. 
»J6id., p. 208. ^Ihid.,2n. 



20 The Bicamei'ol System in AmeriGa. [224 

was reported to that body and approved by it.^ The weighty 
matters with which the Council was now deah'ng and the general 
colonial aversion toward anything savoring of unrestricted 
authority combined to render this method of report and 
approval a popular one, 

Andros landed December 20, 1686, and demanded the 
surrender of the charter. A special session of the Court 
convened on January 26, 1687, and the Council was again 
empowered to take such action as seemed wise and expedient.^ 
The outcome of the matter is well known. Andros governed 
as viceroy from 1687 to his expulsion, in April of 1689. In 
the interim charter government was, of course, suspended. 

Immediately after the resumption of charter government in 
1689, steps were taken toward making it obligatory upon the 
Council to submit certain of their acts to the General Court for 
approval. In May of 1689, the deputies expressed their desire 
by vote that all matters concerning the ^' charter or govern- 
ment'^ should be decided by the General Court, in special 
session if need be, and not left to the independent action of the 
Council.^ This advice was soon acted upon by the Court. The 
custom which obtained before the viceroyalty of Andros of 
constituting the Governor and Council a standing committee 
for the transaction of business in the recesses of the General 
Court was continued, but was modified in one essential 
particular : it was now definitely and repeatedly stated that 
there were certain matters with which the Council was not to 
deal. Naturally enough the matters thus sacredly guarded 
had to do with their charter liberties and the levying of taxes. 
In October of 1691, the General Court, after conferring the 
usual authority upon the Council, added the proviso that they 
(the Council) ^' rayse no money nor make no alteration of 
o"" charter government.''^ In October of 1692, it is likewise 



1 Colonial Records of Connecticut, 1678-1689, pp. 217-218. 

2 Ibid., p. 226. ^ Ibid., 252-3. * Ibid., 1689-1706, p. 62. 



225] The New England Colonies. 21 

" provided [that] they doe not intermeddle with the altering 
or parting with any of our charter rights and priviledges 
without the consent and appoyntment of our Generall Court.'' ^ 
Again in October, 1697, the same restriction is placed upon 
the acts of the Council.^ This custom marks another step 
in the evolution of the bicameral system. 

It is noticeable that during the period between 1689 and 
1698 the acts of the Council, even those not relating to taxes 
and the charter, were submitted with greater frequency and 
regularity to the General Court for approval.^ In 1698, how- 
ever, instead of approving isolated acts of the Council a general 
approval was expressed in the following terms : " This Court 
declared their approbation of what hath been acted by the 
Council since Octob"" last." ^ This substitution of general for 
specific approval marks another step in the process of the 
separation of the two bodies. The Council in the meantime 
still continued to serve the colony in various capacities. In 
April of 1690 that body was appointed a " Councill of War,'' 
and two years later was commissioned to try several persons 
" indicted for familiarity with Satan." ^ Duties of far more 
importance from a legislative standpoint, and of peculiar in- 
terest in our present study, devolved upon the Council in 1698. 
In May of that year they were instructed to make an inquiry 
as to the extent to which the laws of England were in force 
in America and to report the result to the General Court. 
They were also instructed to prepare and report bills for the 
regulation of courts of justice, to suggest proper methods of 
raising revenue, and to devise a plan for the suppression of 
vice.^ This process of legislation approximates very closely 
the essential features of the bicameral system, and little was 
wanting to make the evolution of that system complete. The 



1 Colonial Kecords of Connecticut, 1689-1706, pp. 84-5. 

2 Ibid., 226. 3 See Ibid., pp. 47, 149, 202, 205. 
*Ibid., 251. . 5 See Ibid., pp. 76, 102, 205. 
Ubid., 261-2. 



22 The Bicameral System in America, [226 

final step in the process was taken in October of 1698, and is 
thus recorded : " It is ordered by this Court and the authoritye 
thereof, that for the future this Gener^^ Assembly shall consist 
of two houses ; the first shall consist of the Govern'' or, in his 
absence, of the Deputye Govern'', and Assistants, which shall 
be known by the name of the Upper House ; the other shall 
consist of such Deputies as shall be legally returned from the 
severall towns within this Colonic, to serve as members of this 
Generall Assembly, which shall be known by the name of the 
Lower House, wherein a Speaker chosen by themselves shall 
preside : which houses so formed shall have a distinct power 
to appoint all needfull officers, and to make such rules as they 
shall severally judge necessary for the regulating of themselves. 
And it is further ordered that no act shall be passed into a law 
of this Colonie, nor any law already enacted be repealed, nor 
any other act proper to this Generall Assembly but by the 
consent of both houses." ^ 



Section IV. — Rhode Island. 

Although agitation for the separation of the two branches 
was begun at a very early period on the part of the deputies, 
more than a half century elapsed between the granting of the 
first charter and the introduction of the bicameral system. 
This long delay was, in large part, due to the peculiar method 
of its introduction, and particularly to a compromise upon the 
matter between the magistrates and deputies in May, 1668. 

The English Parliamentary Commission granted a charter 
or patent to the Providence Plantations on March 14, 1644. 
The first General Assembly was held at Portsmouth, May 
19-21, 1647. At this Assembly the charter, an exceedingly 
liberal one, was adopted, and the government systematically 
organized. A majority of the freemen of the colony were 

1 Colonial Kecords of Connecticut, 1689-1706, p. 267. 



227] The New England Colonies. 23 

present and declared forty a quorum to do business/ Thus 
early do we find the germ of the representative system in the 
government of the new colony.^ 

The charter of 1663 vested the government of the colony 
in a governor, deputy-governor, ten assistants, and eighteen 
deputies.^ As in Connecticut, the Governor, Deputy-Governor, 
and assistants were chosen annually by the entire body of the 
freemen, while the deputies were elected by the people of the 
respective towns.^ Here as in Connecticut the different modes 

^ Colonial Records of Rhode Island, I, 147. 

^See Arnold's History of Rhode Island, I, 201-2. 

The method devised by this Assembly for the passing of laws was a 
curious mixture of the representative system and the referendum. Any 
town of the colony — Providence, Portsmouth, Newport or Warwick — could 
initiate legislation. When a town desired the passage of a certain law, the 
matter was discussed and voted upon in the town-meeting. In case of an 
affirmative vote, a copy of the bill was sent to each of the other towns to be 
debated and determined in like manner. A report of the action taken by 
the various towns was then referred to a " Committee for the General 
Courte " consisting of six members from each town. This committee, acting 
as a central canvassing board, determined whether or not the proposed 
measure had been sanctioned by the " Major parte of the Colonie." If so, 
the matter was declared a law to stand until the next meeting of the Gen- 
eral Assembly. The final disposition of the matter was then made. It was, 
in short, the duty of the committee to promulgate laws, not to pass them. 
The initiative in legislation was, however, given to them to be exercised in 
this way. They were authorized to discuss and determine among themselves 
any matter presented to them that might "be deemed necessary for the 
public weale and good of the whole." The various members then reported 
the action of the committee to their respective towns, by whom it was 
discussed and voted upon. The votes were sealed and forwarded to the 
General Recorder of the colony to be opened and counted in the presence 
of the President. In case it was found that the proposition had received a 
majority vote, it was declared a law to stand until the next meeting of the 
General Assembly, by which it was either confirmed or rejected. Colonial 
Records of Rhode Island. 1, 148-9. See also Arnold's History of Rhode Island, 
I, 208. 

'Newport was allowed six deputies, and the remaining towns four each. 
It was also provided that any town subsequently added should have two 
deputies. 

* Charters and Constitutions, II, 1597-1599. Colonial Records of Rhode 
Island, II, 7-11. 



^24 The Bicameral System in America. [228 

of election constitute the germ of the bicameral system ; and, 
though all sat in the same house, the time was not far distant 
when separation was to be sought. It is evident from the 
records that steps looking toward this end were taken almost 
immediately. It was recorded in October of 1664, that there 
had '^ been a long agetation about the motion whether the 
magistrates [assistants] " should " sitt by themselves and the 
deputy es by themselves.'' ^ The matter was put over to the 
next meeting of the Assembly. It appears that this " long 
agetation" was caused by petitions from Warwick and 
Portsmouth asking for the separation of the two bodies. No 
further action seems to have been tal^en until March of 1666. 
The petitions of the two towns were nov*^ duly discussed, and 
after " haveing well weighed such conveniances '' and " incon- 
veniancyes '' as might result from the separation, the Assembly 
decided to grant tlie request, and accordingly ordered that the 
deputies and assistants should sit apart. The settling of the 
details of the change was put over to the meeting of the 
following May.^ At that time, however, no action was taken 
owing to the small attendance of the deputies. In September 
the Assembly seemed undecided as to the advisability of the 
change and ordered the temporary suspension of the enactment 
by which the separation of the two bodies was to have been 
effected. All members of the Assembly thus continued to 
constitute one house.^ In October of the same year (1666), 
a definite decision was readied. At this time the Assembly, 
" having had long and serious debates about the premises," 
ordered that the two bodies should constitute one house as 
heretofore until further action be taken.^ 

It is not at all strange that at this time the debate upon the 
merits of the bicameral system should have been '' long and 
serious,'' inasmuch as it had not fully demonstrated its 
applicability to American conditions, and certainly was not 

, 1 Colonial Kecords of Rhode Island, II, 63. =* Ibid., 144-5. 

^Ibid., 150-1. ^Ibid., 181. 



229] The New England Colonies. 25 

then what De Tocqueville afterwards termed it — " an axiom 
in the political science of the present age." ^ 

In May, 1667, the Governor and Council began a series of 
frequent meetings^ to dispose of important matters arising in 
the intervals of the General Court. The hostility of the 
French and Dutch together with the surly mutterings of 
Indian enmity which culminated in King Philip's War ren- 
dered this a critical period in the existence of the new colony. 
These separate meetings served to differentiate further the 
functions of the two bodies. 

The agitation for the final separation of the two bodies 
seems to have gone steadily on ; and in May, 1668, it resulted 
in a compromise which was destined to delay the introduction 
of the bicameral system in its complete form for nearly three 
decades. At this time the deputies requested that they be 
allowed to withdraw from the Assembly ^^ to consider of such 
affaires as they may think fitt to propose for the well beinge 
of the Collony.'' This request was granted, but with the 
proviso that they return to the Assembly in half an hour. It 
was further enacted that the same permission be accorded the 
deputies in the future in case a majority of them should desire 
it. No law was to be passed in their absence.^ 

In 1672 a method which still quite meets the approval of 
politicians was resorted to in order to allay the jealousy arising 
between the two bodies. The Treasurer was instructed to 
provide, at public expense, a dinner " ffor the keepinge of the 
Magistrates and Deputies in love together, for the ripeninge 
of their consultations, and husbandinge of their time." ^ 

Although as a result of various compromises and devices 
the deputies continued to sit in the same chamber with the 
magistrates, it is clear that certainly as early as 1672 they 
looked upon themselves as a separate and distinct body. They 
considered themselves the House of Commons for Rhode 

^Democracy in America, I, 87 (Reeve's translation). 
''Records, II, 191. ^ j^^-^^ U^ 223. *Ibid.,U5. 



26 The bicameral System in America. [230 

Island, and were not slow in claiming some of the most im- 
portant prerogatives of the English body. On Nov. 6, 1672, 
it was enacted " that noe tax nor rate from henceforth shall be 
made, layd or levied on the inhabitants of this CoUony without 
the consent of the Deputys present pertaining to the whole 
Collony." In the preamble the reason for this legislation is 
set forth. It is declared that 'Hhe House of Commons is the 
peoples representatives there, and the Deputys the representa- 
tives of the freemen here ; " and as no tax can be levied in 
England without the consent of the House of Commons, so, 
too, is it equally just that tax legislation for the colony should 
meet the approval of the deputies.^ The power of the deputies 
was further increased by another act of the same date providing 
that no law concerning the " King's honor '^ or " the peoples 
antient right and libertys " should be passed without the pres- 
ence of " the major part of the Deputys belonging to the whole 
Collony.'^ It was added that any act of the nature indicated, 
passed contrary to the above provision should be '^ voyd and 
of none effect.^' ^ 

The deputies had now attained some of the most important 
attributes of the bicameral system, but it is plain from the 
course of events that they were to be satisfied with nothing 
less than complete separation. On May 6, 1696, they express 
their desire by way of formal resolution ^' that it may be made 
an act of this Assembly, and pass as a vote of the house, that 
all the Deputies of each respective town, shall sit as a House 
of Deputies, for the future, and have liberty to choose their 
Speaker among themselves, and likewise the Clerk of the 
Deputies ; and that the majority of the Deputies so assembled, 
shall be accounted a lawfull House of Deputies.'^ ^ This was 
agreed to, and the Governor and Council were constituted 
the upper house of the Assembly. 



Records, II, 472-3. \Ibid., 473. ^ Ibid., Ill, 313. 



CHAPTER II. 
The Middle Colonies. 

Section I, — New Jersey, 

The first legislative Assembly that ever convened in New 
Jersey was bicameral ; and, though this was in apparent con- 
tradiction to the terms of the charter, and notwithstanding 
the fact that strenuous efforts were made to revert to a single- 
chambered legislature, the system was never abolished. The 
colony was organized under the Concessions ^ of February 10, 
1665. By this instrument the government of the colony 
was vested in a legislative body composed of a governor, a 
body of councillors, not less than six nor more than twelve in 
number, and twelve representatives or deputies chosen by the 
" ffreemen or cheife Agents to others of the Province." The 
Governor was to be appointed by the Proprietors and the Council 
by the Governor. Thus councillors and deputies came to be 
regarded at once, and rightly so, as the conservators of the 
interests of the Lords Proprietors and the people respectively. 
To this fundamental difference were largely due the early in- 
troduction of the bicameral system and much of that discord 
which characterized the legislative proceedings of New Jersey 
throughout the entire colonial period. 

^"The Concessions and Agreement of the Lords Propriators of the 
Province of New Cesarea or New Jersey to and with all and every the Adven- 
turers and all such as shall settle or plant there." New Jersey Archives, I, 
28-42. Learning and Spicer's " Grants and Concessions," etc., 12-26. 

27 



28 The Bicameral System in America. [232 

It is reasonably, though not absolutely, clear from the lan- 
guage of the Concessions that the Proprietors intended that the 
Governor, councillors, and representatives should constitute a 
General Assembly of one house. This seems plain from the 
fact that the Governor or Deputy-Governor is designated as the 
presiding officer of the legislative body constituted as above 
indicated. The phraseology is, however, indefinite and at 
times ambiguous ; and it was obviously to the advantage of 
the councillors to avail themselves of this ambiguity and to 
insist on sitting apart from the deputies, since the increasing 
growth of the colony would soon cause the deputies far to 
outnumber the councillors. 

It was not until April 7, 1668, that the Governor issued a 
call for an assembly. The burgesses were directed to choose 
" able men that are freeholders '^ to join with the Governor and 
Council '^ in the Management of affaires." ^ In obedience to 
this call the first legislative Assembly of the colony was con- 
vened on May 26, 1668. The councillors immediately insisted 
on sitting by themselves, and contended that such an arrange- 
ment was in harmony with the evident intention of the Con- 
cessions. The fact, however, that there were ten deputies 
present and only seven ^ councillors had, no doubt, considerable 
weight in bringing them to this conclusion. It must have been 
plain that in any instance when the interests of the Proprietors 
were opposed to those of the people — and such instances were 
certain to arise — the councillors would be outvoted by the 
deputies. It seems plain, too, that the Council was impelled 
in the matter more by an instinct of self-preservation than by 
any conscientious scruples regarding the interpretation of the 
Concessions. To become a legislative nonentity was not a 
pleasing prospect. At any rate, they carried their point and 
the two branches of the Assembly deliberated apart.^ This 
meeting lasting but four days seems to have been harmonious. 



^ New Jersey Archives, I, 56-7. ^ Learning and Spicer, 77. 

Ubid.,84. 



233] The Middle Colonies. 29 

It was brought to a close at the request of the deputies. They 
sent a communication to the Council saying that they had 
perused certain bills submitted to them by that body but asked 
that final action be deferred until next meeting. To this the 
Council assented. At the next meeting held on Nov. 3, 1668, 
it became evident that the dififerences between the two branches 
of the Assembly were, for the time at least, irreconcilable. 
The deputies were not to be easily reconciled to the bicameral 
arrangement, and the councillors seemed intent on thwarting 
the popular advantage to be gained from an assembly of one 
house. Early in the session, Nov. 6, 1668, the deputies ex- 
press themselves to the Council thus : " We finding so many 
and great Inconveniences by our not setting together, and your 
apprehensions so different to ours, and your Expectations that 
Things must go according to your Opinions, though we see 
no Eeason for, much less Warrant from the Concessions, 
wherefore we think it vain to spend much Time of returning 
Answers by writings that are so exceeding dilatory, if not 
fruitless and endless, and therefore we think our way rather 
to break up our meeting, seeing the Order of the Concessions 
cannot be attended unto.'' ^ In reply to the above the Council 
request tlie deputies to appoint two of their number to con- 
fer with them regarding the alleged infringements of the 
Concessions. " If reason will satisfy you," the reply continues, 
" we shall be very well pleased that you proceed according to 
the Lords Proprietors Concessions and the Trust imposed upon 
you, if not you may do what you Please, only we advise you to 
consider well of your Resolutions before you break up." ^ 
Such correspondence as this, however, was hardly conducive to 
arbitration ; consequently on the following day, November 7, 
the Assembly adjourned not to meet again for seven years. As 
might be expected the colony drifted rapidly toward anarchy. 
A rival government was set up under the leadership of James 
Carteret, and deputies elected by the popular party met at 

^ Learning and Spicer, 90. ^ Ibid., 90-91. ~ 



30 The Bicameral System in America, [234 

Elizabethtown on May 14, 1672/ and proceeded to act as the 
lawful Assembly of New Jersey. In this critical juncture 
prompt action was indispensable for the preservation of the 
authority of the Proprietors. Philip Carteret the Governor 
and James Bollen, Secretary of the Council, proceeded at once 
to England and laid the whole matter before the Lords Pro- 
prietors. Inasmuch as the Concessions of 1665 had been the 
object of such bitter contention, and since that instrument had 
been so differently interpreted by the Governor and Council 
on the one hand and the deputies on the other, it seemed 
incumbent upon the Lords Proprietors to declare the " true 
intent '' of the disputed clauses. This they did in an instru- 
ment bearing the date December 6, 1672, and styled, "A 
Declaration of the true intent and Meaning of us the Lords 
Proprietors, and Explanation of there Concessions made to 
the Adventurers and Planters of New-Caesarea or New 
Jersey.^' ^ It is clear from a perusal of this document that its 
title is a misnomer. It is not a " declaration of the true intent 
and Meaning .... and Explanation of the Concessions'' but 
a very essential modification of that fundamental instrument. 
The effect of this Explanation was to enhance very materially 
the power of the Council at the expense of the General 
Assembly as a whole. The Proprietors, naturally enough 
perhaps, favored the Council in their exposition of the mooted 
clauses. It is evident, too, that they were induced more by 
expediency than by considerations of abstract justice or by a 
logical construction of the terms of the Concessions. The 
" explanation '' of most importance for our present purpose is 
the declaration regarding the deliberations of the General 
Assembly. " We the Lords Proprietors," they affirm, '^do 
understand that in all Generall Assembly's, the Governor and 
his Council are to set by themselves, and the Deputies or 
Representatives by themselves, and whatever they do propose 
to be presented to the Governor and his Council, and upon 

^ New Jersey Archives, I, 89-90. '^ Ibid., I, 99. 



236] The Middle Colonies. 31 

their Confirmation to pass for an Act or Law when Confirmed 
by us." ^ Whatever may have been the intent of the Con- 
cessions of 1665, the above is clearly a declaration for the 
bicameral system. 

On Nov. 5, 1675, a meeting of the General Assembly was 
held after an interval of seven years. Although the sessions 
were now regular it was evident that the new dispensation was 
not at all satisfactory to the deputies. The attitude and temper 
of the two houses are clearly disclosed in the correspondence ^ 
which took place between them at a meeting from Oct. 19 to 
Nov. 2, 1681. The deputies objected to the Explanation of 
Dec. 6, 1672, on the ground that it curtailed their power to 
the advantage of the Council, and further contended that the 
Concessions of 1665 should " be taken according to the Letter 
w%ut any Interpretacon whatsoever." They characterize the 
Explanation as "a Breach of the Concessions" and '^desire 
and Expect that the same may be made voyd and of none 
effect." They state in their communication to the Council 
that their action is not hasty or ill-advised, but that on the 
contrary they have " perused and well weighed " the contents 
of the document under consideration. To this the Council 
submitted the somewhat tart rejoinder that if they ^' had alsoe 
the Benefitt of understanding," they " would neither have 
desired nor Expected the same to be made voyd." They de- 
clare it " a matter of lamentac'on that the Representatiues of 
this Province should be soe shorte sighted that they cannot 
see that he which runnes may Read." A joint meeting is 

^ New Jersey Archives, I, 100-101. The Explanation also granted to the 
Governor and Council the power "to appoint the Times and Places of 
meeting of the General Assembly, and to adjourn and summon them to- 
gether again : " a power formerly vested in the General Assembly as a 
whole. New Jersey Archives, I, 99. 

On July 31, 1674, Sir George Carteret in a body of " Instructions" to the 
Governor reiterates the Explanations of 1672, thus proclaiming again the 
bicameral system. New Jersey Archives, 1, 167-175. Leaming and Spicer, 
55-67. 

* New Jersey Archives, I, 354-365. 



32 The JBioameral System in America, [236 

proposed for discussing the points at issue. Failing in this, 
recourse is again had to pot and kettle correspondence. The 
crisis came on Nov. 2, 1681. On that day the Clerk of the 
Council appeared in the House of Deputies at the head of 
a committee and requested that body to accompany him to the 
council chamber, there to discuss, and, if possible, settle their 
points of difference. The Speaker replied that the deputies 
wished " to consider of it a little." Thereupon the Clerk of 
the Council declared the '^ Pretended house of Deputies '^ 
dissolved, and left upon the table a letter in which the C'ouncil 
had " freed their minds." The letter charges the deputies with 
considering themselves the entire Assembly ; and adds that if 
they were at all qualified to act as representatives they would 
have good manners enough to prevent them from assuming 
so much. '^ It was Lucifers Pride," say the councillors, " that 
Putt him upon settling himselfe where God never intended to 
sett him and his Presumption produced or was the forerunner 
of his fall." The deputies are accused of arrogating to them- 
selves powers never given to them by the Concessions or the 
laws of England. In addition they are twitted with being 
more zealous for private and selfish ends than for the welfare 
of the colony. " Private Spiritts in men in publique employ"^* 
are the Jewels that addorn^ yo"" brests." " Everything being 
beautifull in its season and soe we bid you fairewell " is the 
parting shot from the Council's well supplied magazine of 
invective. Thus ended in failure the strenuous endeavor of 
the deputies to revert to the Concessions of 1665 and a single - 
chambered legislature. 

In 1683 the Proprietors issued "The Fundamental Consti- 
tutions'^^ for the government of the province, but attached 
certain conditions with which the people were to comply before 
availing themselves of the privileges of the new instrument. 
Although this new frame of government was not put into 
operation,^ it is interesting to note the changes in the constitu- 

^ New Jersey Archives, I, 395. ^ See Mulford's History of New Jersey, 219. 



237] The Middle Colonies. 33 

tion of the legislature. The law-making power was vested in 
a '' Grand Council " to be composed of the Proprietors or their 
proxies and the representatives. They were to constitute one 
house, but in voting a distinction was made between the Pro- 
prietors and the representatives. One-half of the Proprietors 
and one-half of the representatives were to constitute a quorum ; 
and the votes of two-thirds of the representatives and one-half 
of the Proprietors present at any meeting were necessary for 
the passage of a bill. This constitution, then, if put into 
operation,^ would establish a peculiar kind of unicameral 
legislature in which the system of checks and balances so 
potent in bicameral legislatures would operate. 

The legislative Assemblies thus far noticed are those of New 
Jersey up to July 1, 1676 ; after that date they belong to the 
history of Ead Jersey. On the date just mentioned the 
province was divided^ into East and West Jersey by the 
Quintipartite deed. Although of secondary importance for our 
present purpose, a brief consideration of the West Jersey 
legislature is essential. The fundamental law was comprised 
in "T/ie Concessions and Agreements''^ of March 3, 1677. 
The legislature consisted of one house. The whole province 
was to be divided into one hundred "proprieties" and the 
inhabitants of each were to choose one representative. These 
" Deputies, Trustees or Representatives " were to constitute 
the " General, Free and Supream Assembly." The Assembly 
met for the first time on November 25, 1681, and for a time 
continued to meet regularly. Finally on April 15, 1702, the 



^The reasons why this constitution — which appears in many ways an 
improvement upon the old form — was not adopted, do not appear in the 
records. The Deputy-Governor did not press its adoption, as he was in- 
tructed to do, and there were certain features of it not entirely agreeable to 
the colonists. See Mulford, p. 221. 

^ New Jersey Archives, I, 205. 

^ " The Concessions and Agreements of the Proprietors, Freeholders, and 
Inhabitants of the Province of West New-Jersey in America." New Jersey 
Archives, I, 241-270. Learning and Spicer, 382. 

3 



34 The Bicameral System in America, [238 

two colonies of East and West Jersey were surrendered ^ to the 
Crown, united, and made a royal province. Lord Cornbury 
was appointed to govern both New York and New Jersey, and 
his commission^ and '^ Instructions'^ ^ constituted the funda- 
mental law of New Jersey throughout the remainder of the 
colonial period.^ The legislature was composed of thirteen 
councillors named in the '^Instructions/' and twenty-four 
representatives chosen by the people — twelve from East and 
twelve from West Jersey. The sessions were to be held 
alternately at Perth Am boy and Burlington — in East and 
West Jersey respectively. The Council and House of Repre- 
sentatives, following the custom of East Jersey, sat apart.^ 

Another change of some importance was made in the legis- 
lature in 1738. In that year New Jersey was separated from 
New York, and the Governor of New Jersey withdrew from 
the deliberations of the Council.^ 



^Learning and Spicer, 615; Archives, II, 452. 

« Archives, II, 489. » Ibid., 506. 

* Cf. Gordon's History of New Jersey, 54-5. 

' Journal and Votes of the House of Representatives of I^ ew Jersey, p. 21. 

^Mulford, p. 335. Frothingham {Rise of the MepvMic, p. 20, n.) says 
that the House and Council sat together. It is plain from the records that 
they did not. For instance, in the records of the first meeting of the House 
of Representatives, held in 1703, we find the following entry : "A message 
from y® Council by Maj'^ Sanford, That they have agreed to a Bill Entituled 
a Bill for Regulating y® purchasing of Lands from y® Indians, w*^ some 
Amendm*s, to w'^^ they desire the Concurrence of this H^." (pp. 20-1, 
Journal and Votes of the House of Representatives of New Jersey. Other 
instances of the same tenor appear on the same pages. ) 

Frothingham further says : " In 1738, the council was made a separate 
branch ; the governor withdrew from it, and no longer was the presiding 
officer." (Note, p. 20.) As authority for this statement he refers to Mulford, 
335, and herein lies the explanation of the error into which Mr. Frothingham 
has fallen. What Mulford says is this : " The Council were made a separate 
branch of the Legislature ; the Governor refraining from immediate partici- 
pation in any measure relating to Legislative proceedings." (History of 
New Jersey, p. 335.) Mulford evidently does not mean to say that the 
Council was separated from the House at this time, but that the Governor, 
who formerly presided over the Council, now withdrew and left that body 



239] The Middle Colonies. 35 



Section 11. — New York. 

For New York the story is quickly tokl. True to the 
governmental instincts of the Teutonic race, and inspired by 
the example of the New England colonies, the people of New 
York began to move for a representative government imme- 
diately after that colony came into the possession of the Duke 
of York; but the experience of the Stuarts with popular 
assemblies was not particularly reassuring, and, as a conse- 
quence, the request was postponed until it seemed necessary to 
make the grant for financial reasons. Intimations that the 
boon of self-government would be granted were forthcoming 
from time to time. In a letter^ to a New York officer, under 
date of Feb. 11, 1682, the opinion was expressed that ^' his 
E," ff'' would "condescend to y^ desires of y* Colony in 
granting y™ equall priviledges, in chooseing an Assembly &*' 
as y® other English plantations in America'^ had. The Duke 
himself expressed a like intention in a letter of March 28, 
1682, upon the condition, however, that the colony "provide 
some certaine fonds for y® necessary support of y® governem*.'' ^ 
The hopes thus raised were soon realized. In the ^^Instructions '' 
to Governor Dongan, issued Jan. 27, 1683, that official was 
ordered to summon a representative Assembly to join with 
himself and Council in making laws "fitt and necessary to be 
made and established for the good weale and governem* " of 



of itself a separate branch. Mulford was fully aware that the two houses 
did not sit together up to this time, as he mentions instances in which bills 
passed by one house were rejected by the other. "The bill prepared by 
the committee was passed by the House, and sent to the Governor and 
Council ; but it met the fate of the preceding ones, it was rejected by a 
majority of the Council." Such is the language of Mulford in speaking of 
the fate of a bill at the meeting of December 7, 1710. (History of New 
Jersey, p. 310.) Other examples of similar import appear on the pages of 
Mulford. 
1 Colonial Documents of New York, III, 317. '^Ibid., 317-318. 



36 The Bicameral System in America, [240 

the colony/ Governor Dongan did as he was directed, and on 
Oct. 17, 1683, the first legislative Assembly of New York 
was convened.^ It was a bicameral body, the Governor and 
Council constituting one house and the representatives the 
other.^ At this meeting a very important act was passed — the 
" Charter of Libertys " ^ — in accordance with which the gov- 
ernment of the colony was to be organized and administered 
under the superior control of the Duke of York. This charter 
provided that representatives chosen by the people should, 
with the Governor and Council, constitute " the supream and 
only legislative power under his Roy'^^ Highnesse." Provision 
was made for two distinct houses. It was provided " Thatt 
all bills agreed upon by the said Representatives, or the major 
part of them," should " bee presented unto the Governor and 
his Councell for their approbacon and consent," and that " all 
and every which said bills so approved of and consented to by 
the Governor and his Councell," should ^' be esteemed the 
laws of the province." The charter was sent to the Duke of 
York and approved by him, October 4, 1684.^ Shortly ® after 



^ Colonial Documents, III, 331. 

^ Journal of the Legislative Council of New York, Introduction, p. xi. 
^Appended to the first bill of the session — the "Charter of Libertys" — 
to be mentioned presently, is found the following memorandum : 

"New-Yorke, Oct. 26, 1683. 
" The Kepresentatives have assented to this bill, and order it to bee sent 
up to the Governo'r and Councell for their assent. 

" M. NicoLiiS, /SpeaA^er." 

" After three times reading, it is assented to by the Governour and Coun- 
cell this thirtieth of October, 1683. Tho. Dongan. 
" John Spragge, Clerk of the Assembly." 

Brodhead's History of the State of New York, II, 661, Appendix E. 

* The Charter is printed in full in Appendix E of Brodhead's New York, 
II, 659. 

5 Historical Magazine for Aug., 1862, Vol. VI, p. 233 ; Chalmers' Annals, 
I, 588 ; Brodhead's New York, II, 416, n. 

•March 3, 1685. 



241] The Middle Colonies. 37 

his coronation, however, he vetoed it.^ Governor Dongan was 
accordingly notified in a body of ^^Instructions " ^ issued May 29, 
1686, that the charter was "repealed & disallowed." The 
law-making power was placed in the hands of the Governor 
and Council, and the representative body was abolished. The 
powers of the Governor were more specifically designated in 
his commission^ of June 10, 1686. He was empowered " with 
the advice and consent of" the " Council or the major part of 
them, to make, constitute and ordain Laws, Statutes and 
Ordinances for the publick peace, welfare & good Govern- 
ment " ^ of the province. All such laws, however, were to be 
sent to England for royal approval within three months after 
their passage. In obedience to these instructions Governor 
Dongan dissolved the Assembly, January 20, 1687.^ 

The government of the colony thus devolved upon Dongan 
and his Council of five. This form was continued, under 
Andros as well, until Leisler took the government in his own 
hands in 1689. At his call an Assembly met in April, 1690, 
and again on September 15, of the same year. Both of these 
consisted of two houses. News of the usurpation was im- 
mediately sent to England,^ and, on November 14, 1689, a 
commission ^ was issued to Henry Sloughter to be Governor of 
the colony. By this commission the representative Assembly 
so ruthlessly brushed aside by James II in 1685, was revived. 
The Governor was empowered "with the consent of" the 



^ Colonial Documents, III, 357. 

In a document entitled " Observac6ns upon the Charter of New York," 
and bearing the same date as the veto, are set forth various reasons for 
withholding, or rather withdrawing, the royal assent. It is urged among 
other things that the charter " seems to take away from the Governor and 
Councill the power of framing Laws as in other Plantations." This obser- 
vation is made upon that clause which provides that bills passed by the 
representatives should be presented to the Governor and Council for their 
approval. Colonial Documents, III, 358. 

= Colonial Documents, III, 369. ^ jj^-^^ 377 4 75,^-^^ 373 

* Journal of the Leg. Coun. of New York, Introduction, XVII. 

« Colonial Documents, III, 585. '' Ihid., 623. 



38 The Bicameral System in America. [242 

" Councill and Assembly or the major part of them," " to 
make constitute and ordain Laws Statutes @ ordinances for 
y® publique Peace, welfare and good Government'' of the 
province/ This commission with some slight modifications 
formed the fundamental law of New York until the Revolu- 
tion.^ The first session of the legislature was held on April 9, 
1691.^ The two houses sat apart, the Governor presiding over 
the Council.^ In 1736, however, it was declared " inconsistent " 
for the Governor to sit and vote as a member of the Council ; 
hence he withdrew, and it was made a standing rule that the 
oldest councillor present should preside.^ 

Section III.— Pennsylvania and Delaware. 

These two colonies may well be treated together inasmuch 
as the organic connection between them was not totally severed 
until the Revolution. Both were governed under the same 
colonial charters, and it was not until a comparatively late 
period that the bicameral system was introduced into their 
legislatures. 

The first charter of government for Pennsylvania was that 
granted by William Penn on July 11, 1681.^ This may be 
dismissed at once since it makes no provision for a legislative 
body. 

The second " frame of government " "^ was granted on April 
25, 1682, and by it a legislative body was constituted consisting 
of a Governor, Council, and General Assembly, the two latter 



1 Colonial Documents, III, 624. 

* Cf. Thompson's History of Long Island, I, 168. 

^ Smith remarks that the laws passed by this Assembly were the first ones 
deemed valid by the courts. History of New York, I, 98, n. 

*The Governor and Council were appointed by the Crown. Colonial 
Documents, III, 623. 

'" Journal of the Leg. Coun. of New York, XXIX. 

•* " Certain Conditions, or Concessions," etc. Charters and Constitutions, 
II, 1516. ^ Ibid., 1518. 



243] The Middle Colonies, 39 

bodies being chosen by the people. The Council was to consist 
of seventy-two members and the Assembly of two hundred.^ 
The Governor or his Deputy presided and had a ^' treble 
voice." The power of initiating legislation was in the hands 
of the Governor and Council. It was their duty to " prepare 
and propose " bills to be affirmed or rejected by the Assembly. 
Penn had given the science of government much and serious 
thought, and this mode of legislation seems to have been his 
favorite scheme. He would revert to the old Greek method 
of having legislation prepared in a houU. Such a system, 
however, is not in harmony with Teutonic instincts and tra- 
ditions, and a short space of time served to demonstrate the 
fact that the people would insist upon originating legislation 
in their popular assemblies. It should be added, however, 
that in this scheme of Penn's some provision was made for 
amendment by the Assembly. For the first eight days of the 
session the members of the Assembly were to " confer with 
one another '' regarding the proposed legislation. If they so 
desired, a committee of twelve from the Council would be 
"appointed to receive from any of them proposals, for the 
alteration or amendment of any of the said proposed and 
promulgated bills." Upon the ninth day of the session the 
Assembly was to " give their affirmative or negative " to the 
proposed legislation. 

Thus far our narrative has had to do with Pennsylvania 
alone; but on Aug. 24, 1682, Penn received by deed ^ from the 
Duke of York that land which has since become known as Dela- 
ware. From this time on we find the terms " Province " and 
" Territories " used to designate Pennsylvania and Delaware 
respectively. In the latter part of the same year the Province 
was divided into three counties — Bucks, Philadelphia, and 
Chester — and the Territories, likewise, into three — New Castle, 



^ These numbers were found to be too large and were afterward reduced. 
' Proud' s History of Pennsylvania, I, 201 ; Hazard's Annals of Pennsylvania) 
1609-1682, 588, 590. 



40 The Bicameral System in America, [244 

Kent, and Sussex.^ These " three lower counties " were for- 
mally annexed to the Province by an " act of union " passed 
by the first Assembly on Dec. 7, 1682.2 

The first Assembly under the charter met at Philadelphia 
on March 10, 1683.^ In this the counties upon the Delaware 
were represented.* At this session a request was made by the 
Assembly for a new charter. The request was granted by the 
Governor, and a new charter drawn up by a committee^ of six 
from each body was accepted and signed by Penn on April 2, 
1683.^ This was to constitute a frame of Government for 
^^ Pennsylvania and Territories thereunto annexed.'' The 
Council was to consist of eighteen and the Assembly of thirty- 
six, both elected by the people. Although the method of 
passing laws remained the same in the charter, a very essential 
change was made in practice. The Assembly complained that 
their prerogatives were restricted within too narrow bounds 
by being allowed only to confirm or reject bills, and demanded 
the right to originate legislation. This idea was embodied in 
a resolution of the Assembly and was approved by the Gov- 
ernor. Although protests were made by Penn against this 
privilege, it was exercised at intervals until 1696 ; at which 
time it was incorporated in a new frame of government.^ The 
Assembly was now for the first time granted the charter 
privilege of originating bills. Bills passed by the Assembly 
were to be sent to the Governor for his approval or rejection, 
"with the advice of the Council.'' 



1 Proud, I, 234. « j^^-^^ 2O6 ; Hazard, 611. 

^Colonial Records of Pennsylvania, I, 57. The Council met on this date 
and the Assembly two days later. Cf. Proud, I, 235. 

^ Three councillors and nine assemblymen were chosen from each county, 
making seventy-two in the entire body. This number was much smaller 
than that called for by the charter, as it was deemed inconvenient to elect 
the large number there specified. The Governor approved the change. 
Proud, I, 237-8. 

^Colonial Records, E, 69. ^Charters and Constitutions, II, 1527. 

' See Gordon's History of Pennsylvania, 79-80, 106 ; Proud, I, 394-5 ; 
Hazard's Annals, 609. For this frame of government, see Poore's Charters^ 
II, 1531. 



246] The Middle Colonies, 41 

Finally on the 28th of October, 1701/ the charter was issued 
which remained in force until superseded in Pennsylvania and 
Delaware by their respective state constitutions, both drafted 
in 1776. This charter provided that the legislative power 
should be vested in a representative Assembly composed of 
four members from each county. Laws were to be enacted by 
the Governor with the " consent and approbation " of this 
Assembly. Penn also, by letters patent,^ appointed a " Council 
of state '' consisting of ten men, who, among other duties, were 
to serve the Governor in an advisory capacity. Bancroft says,^ 
in writing concerning the government in Pennsylvania in 1754, 
that the right to revise legislative acts was denied to the 
Council and that long usage confirmed the denial. This is no 
doubt legally true, but an inspection of the records reveals the 
fact that in practice the Council really did amend legislative 
acts. The Governor had a veto on all bills, and acted with 
the advice of the Council ; hence it was necessary for the 
Assembly to frame their laws in such a way as to meet the 
approval of the Governor and his Council. This they did. 
At a meeting of the Council held January 22, 1749, three 
bills were sent to the Governor for his approval. Amendments 
were proposed to all of them, and they were returned to the 
Assembly.* Instances are also cited where the Assembly give 
notice to the Council that they agree to the amendments 
proposed.^ In this legislation the theory differs from the 
practice. It somewhat resembles the method in vogue at the 
present time whereby members of Congress ascertain in advance 
the kind of bill to which the President will give his signature. 

Up to the date of the last charter, Pennsylvania and 
Delaware were governed by the same legislature, with the 
exception of a period of two years extending from 1691 to 1693. 
The friction between the two colonies, however, had been all 



Charters and Constitutions, II, 1536. ^ Proud, I, 451, n. 

' II, 397. (Last revised edition.) * Colonial Kecords, V, 426. 

' Ibid., 426-7. 



42 The Bicameral System in America. [246 

but continuous; consequently Penn provided in the new 
charter of 1701 that the Province and Territories might have 
separate legislatures in case of continued disagreement. The 
Territories demanded by virtue of this clause a legislature of 
their own, and in 1703 an agreement was effected by which 
their wish was realized. The two colonies retained their 
distinct legislatures under the same executive until the Revo- 
lution. The legislatures, as above noted, consisted of single 
chambers. In Delaware, the bicameral system was introduced 
by the constitution of 1776,^ while in Pennsylvania the legis- 
lature consisted of a single house until the adoption of the 
constitution of 1790.^ A unicameral legislature was the natural 
outcome of Penn's ideas of government as embodied in his 
various charters. Even in her first state constitution, that of 
1776, Pennsylvania still clung to the single-chambered legis- 
lature. In this the influence of Franklin is apparent. He was 
in pre-revolutionary days, as Bancroft says, " the soul of the 
Assembly/^ and always resisted any change from what he 
termed the simplicity of a legislature of one house. He was 
also the President of the constitutional convention which drew 
up the state constitution of 1776, and then also championed 
with ability and success the idea of a single house. 



Charters and Constitutions, I, 273. ^ Ibid., II, 1548. 



k 



CHAPTEE III. 

The Southern Colonies. 

Section I, — Maryland, 

It required but five years for the Maryland colony to out- 
grow the primary assembly and to appreciate the superior 
efficiency of the representative form. The several hundreds 
and the Isle of Kent were each instructed to elect deputies or 
burgesses to represent them at a meeting of the Assembly to 
be held at St. Mary's on Feb. 25, 1639. This they did, and 
on the first day of the session an act was passed " For the 
Establishing the house of Assembly." ^ It was declared by 
this act that the House of Assembly should consist of the 
Lieutenant-General, the Secretary of the province, the gentle- 
men summoned by special writ of the Lord Proprietary, the 
burgesses, and " such other Freemen (not haveing Consented 
to any the Elections as aforesaid).'' In order not to make the 
transition from the primary to the representative assembly too 
abrupt, it was provided that those freemen who wished to do 
so might refrain from voting and then demand seats in the 
Assembly. This was actually done in some instances and 
seats were granted accordingly. The absurdity of the plan 
was soon seen, however, and it fell into disuse. 

It was to be expected that those summoned by special writ 
would be looked upon as representing the interests of the 

1 Proceedings of the Assembly, 1637/8-1664, pp. 81-2. See also Chal- 
mers' Annals, I, 213; Bacon's Laws of Maryland, 1638, ch. I; Griffith's 
Annals of Baltimore, 7. 

43 



44 The Bicameral System in America. [248 

Lord Proprietary, and that the burgesses would consider them- 
selves the only true representatives of the people. A strong 
community of interest sprang up among the burgesses and 
received emphatic expression in 1642. On July 18 of that 
year the burgesses, " either actuated by the spirit natural to 
representatives, or animated by the example of the Commons 
of England," ^ desired to sit by themselves and have a negative 
on the acts of the remaining members of the Assembly.^ It 
seems plain that the separation was desired not by a faction 
of the burgesses but by the entire body. This is evident from 
the fact that the motion was made by Burgess Robert Vaughan 
" in the name of the rest." The request was denied, however, 
by the Lieutenant-General, and for eight years longer the 
Assembly continued to sit as one house. It is clear that in 
the meantime the burgesses were becoming exceedingly jealous 
of their prerogatives, or rather of what they considered their 
prerogatives. For example, in July of 1642 the Lieutenant- 
General wished an appropriation for a military expedition 
against the Indians. The matter met with serious opposition 
on the part of the burgesses. In the course of the discussion 
the Lieutenant-General plainly apprises them that it is not 
his intention to counsel with them upon the advisability of 
such an expedition, in as much as decision in matters relating 
to peace and war was vested in him by the patent. In short, 
he desired to know the amount of their appropriation and not 
their opinions.^ It is not the wont of representative bodies, 
however, to subside under a rebuff from an agent of the king. 
Koyal opposition serves only to consolidate. Consequently, 
on Aug. 1, of the same year, Mr. Greene, burgess from St. 
Mary's hundred, objected to the passage of a certain bill on 
the ground that it was not voted for by the major part of the 



1 Chalmers, I, 219. 

'Proceedings of the Assembly, 1637/8-1664, p. 130; Bacon's Laws of 
Maryland, 1649, ch. XII. 

» Proceedings of the Assembly, 1637/8-1664, 130-1. 



249] The Southern Colonies. 45 

burgesses, although it secured a majority of the Assembly as 
a whole.^ Although the matter was decided against him and 
the Assembly declared one house, the claim of Mr. Greene, 
without precedent though it was, is interesting in showing that 
the line of demarcation between the burgesses and those sum- 
moned by special writ was being more distinctly drawn. 

The separation was finally effected on the first day (April 6) 
of the session of 1650, by an act "for the settling of this 
present Assembly.'^ It ran thus : " Bee it Enacted by the 
Lord Prop"" w*^ the aduise & consent of the Counsell & Bur- 
gesses of this prouince now assembled. That this p^'nt assembly 
during the continuance thereof bee held by way of Vpper & 
Lower howse to sitt in two distinct roomes a part, for the more 
convenient dispatch of the business therein to bee consulted of. 
And th* the Gou'l & Secretary, or any one or more of the 
Counsell for the Vpper howse." ^ The burgesses, " or any fiue 
or more of them '^ were to constitute the lower house. The 
two branches were declared to " haue the full power of, & bee 
two howses of Assembly to all intents and purposes." It was 
further declared that all bills passed by the two houses and 
indorsed by the Governor should be laws of the province, 
" after publicdn thereof, .... as fully to all effects in Law 
as if they were aduised & assented unto by all the ffreemen of 
the province personally.'^ From this time on we find the laws 
of the colony enacted " By the Lord Proprietary with the advice 
and assent of the upper and lower house of this Assembly/^ ^ 



1 Proceedings of the Assembly, 1637/8-1664, 141. 

^Ihid.j 272-3. See also, Bacon's Laws, 1650, ch. 1; Griffith's ^nnafe of 
Baltimore, 13-14. 

^ Bacon says {Laws of Maryland, 1649, ch. XII), that the two houses were 
separated in 1649. There is, he says, no record of the act by which this 
was done, but he argues that the separation must have been made at some 
time prior to the last day (April 21) of the session of 1649, since the laws 
passed on that date were enacted "JBy the Lord Proprietary, with the Assent and 
Approbation of the Upper and Lower Houses." The laws of this session as 
printed in the Maryland Archives, however, purport to have been passed by 
the Lord Proprietary by and with the consent of the General Assembly, no 



46 The Bicameral System in America. [250 

Section IL — Virginia. 

The account of the introduction of the system into the 
Virginia legislature must of necessity be brief, since the 
sources now available do not relate in a satisfactory way the 
details of the process of the separation of the Council and the 
House of Burgesses. 

In June of 1619, Governor Yeardly issued a call for a 
legislative Assembly to consist of two burgesses from each 
plantation, town or hundred. This, the first representative 
Assembly that convened in America, met in Jamestown on 
July 30, 1619. The twenty-two burgesses met in one body 



mention whatever being made of " Upper and Lower Houses." It is true, 
however, that in the manuscript book of laws (Liber C and W H), from 
which Bacon drew, we do find the upper and lower houses mentioned in the 
enacting clauses of laws of April 21, 1649 ; but the manuscript volume from 
which the laws were compiled (Liber A), as printed in the Maryland 
Archives, is older and considered by the editor. Dr. William Hand Browne, 
to be more reliable than the one used by Bacon. By adopting the reading 
of the laws as found in the Maryland Archives we are relieved from the 
necessity of supposing, as Bacon does, that an act was passed separating the 
two houses in 1649, but that the record of it has been lost. If such an act 
were passed in 1649, why repeat it in 1650 ? It seems more reasonable to 
suppose that the copyist of Liber C and W H, used by Bacon must have 
inserted the reference to the upper and lower houses, without considering 
that such an expression was not applicable to 1649. 

Chalmer's states {Annals, I, 219-20), that the separation was made "during 
the distractions which ensued " in 1649 ; but since in his account of the 
colony of Maryland, he leans confidingly upon the arm of Bacon, the origin 
of his error, if such it be, is apparent. 

Hannis Taylor ( The Origin and Growth of the English Constitution, p. 24) 
says that the legislature was divided into two chambers in 1647, and refers 
the reader to Winsor, Nar. and Crit. Hist, of Amer., Ill, 536, and to Doyle, 
Virginia, etc., pp. 286-291 for an account of the early Assemblies. The 
writer in Winsor, Mr. W. T. Brantly, says, however, on the page above 
indicated that "At this session [1650] there was first made a permanent 
division of the Assembly into two houses." Doyle, however, says (p. 291) 
that the separation was made in 1647. In this he is obviously incorrect. 
C. E. Stevens in his Sources of the Constitution, p. 18, copies Taylor's state- 
ment, apparently without consulting Winsor. 



261] The Southern Colonies, 47 

with the Governor and Council, and so continued to do until 
1680. The testimony of Beverley is definite upon this point. 
" Before the year 1680/^ he says, " the council sat in the same 
house with the burgesses of assembly, much resembling the 
model of the Scotch parliament ; and the Lord Colepepper, 
taking advantage of some disputes among them, procured the 
council to sit apart from the assembly ; and so they became 
two distinct houses, in imitation of the two houses of parlia- 
ment in England, the lords and commons ; and so is the con- 
stitution at this [1705] day/' ^ Culpepper seems to have been 
adroit in playing off one branch of the Assembly against the 
other to subserve his own interests and further his political 
schemes. More than once does he appear in this role. 

Section III, — The Carolinas. 

In the legislative history of the Carolinas there is little that 
is of importance to us in our present study, since in South 
Carolina the bicameral system has prevailed from the begin- 
ning of the legislative history of that colony, and in North 
Carolina it is impossible to determine just when or how the 
system originated. 

According to the " Concessions " ^ issued by the proprietors 
in 1665 for the government of North ^ Carolina, the legislative 
power was vested in a General Assembly consisting of twelve 
" Deputyes or representatives " together with the Governor 
and Council. The latter body was to be appointed by the 
Governor, and was to consist of not less than six nor more 
than twelve members. This Assembly was to constitute one 



^History of Virginia, 187-8, Campbell's Edition. 

^ Colonial Records of North Carolina, I, 79-92. 

^It seems convenient to use the terms "North" and "South" but the 
division between the two was not really made until they became royal 
colonies. 






48 The Bicameral System in America. [252 

house ^ over which the Governor or his Deputy was to 
preside. 

The Fundamental Constitutions ^ of Locke and Shaftesbury 
of 1669 provided for a "Parliament'^ consisting of the pro- 
prietors or their deputies, landgraves, cassiques, and popular 
representatives. They were to sit together in one room and 
each member was to have one vote.^ All bills were to be 
prepared by a Grand Council, and nothing whatever was to 
be proposed in the Parliament which had not previously been 
passed by the Council.^ It was readily seen by the proprietors 
that this constitution could not be enforced at once on account 
" of the want of Landgraves and Cassiques and a sufficient 
number of people ; '' hence a temporary constitution,^ embodied 
in a list of instructions to the Governor and Council, was 
sent over in 1670 and put into operation. This constitution 
provided for a unicameral legislature consisting of twenty rep- 
resentatives chosen by the people and five deputies appointed 
by the proprietors. All laws were to be ratified by the Gov- 
ernor and three at least of the five deputies. Although this 
Assembly consisted of a single chamber it is not difficult to 
perceive the germ of the bicameral system in this provision 
for ratification by the three deputies. It was no doubt from 
this idea that the upper house was evolved. It is impossible 
to say just when the separation of the deputies and repre- 
sentatives took place. It was probably a gradual process 
which received formal recognition in 1691. Since the deputies 
could defeat any measure by refusing to ratify it, it seems 
probable that they did not care to attend the sessions of the 



^ The language of these " Concessions " is almost identical with that of the 
New Jersey Concessions of Feb. 10, 1665, under which two houses were 
organized. The Carolina construction of the document seems far more 
plausible. 

'''Charters and Constitutions, II, 1397. 

3I6id, 14C4. */6td, 1403. 

" Colonial Eecords of N. C, 181. 



253] The Southern Colonies. 49 

Assembly except when they wished to promote some legislation 
favorable to the interests of the proprietors.^ 

On Nov. 8, 1691, a body of instructions^ was issued to 
Governor Ludwell. This document constituted a new frame 
of government for the colony. The legislature was now to 
sit in two houses. The lower house was to consist of twenty 
representatives, while the landgraves, cassiques and deputies 
were designated as the upper house. 

In 1729 proprietary government in North Carolina ceased 
with the sale of the colony to the crown, but in the instruc- 
tions ^ to the royal Governor the legislature of two houses is 
plainly continued.'* 

The constitution of 1776 provided for a Senate and a House 
of Commons,^ 

South Carolina had a separate legislature but was under 
the same Governor with the northern colony until 1712. 
Sources of information for the early history of the Carolinas 
are very meager, but it seems clear that the legislature of 
South Carolina, practically from its beginning, consisted of 
two houses. Ramsay says^ that the first legislature assembled 
in 1674^ and consisted of the "governor, and upper and 
lower house of assembly; and these three branches took the 
name of parliament.'^ The legislative records do not begin 
until 1682.^ It seems plain, too, that though the legislature 
consisted of two houses, it lacked some of the most essential 
attributes of the bicameral system in its highly developed form. 
Although no serious attempt was made to put the Fundamental 
Constitutions into operation as a whole, yet an effort was made 
to apply some of their provisions. On December 16, 1671, a 
short set of instructions was framed for Governor Yeamans in 



^See Bassett's The Constitutional Beginnings of North Carolina, J. H. U. 
Studies, Twelfth Series, III, 57-8. ^ Colonial Kecords, I, 373. 

^Ihid., Ill, 90. *See Sec. 14 of the Instructions, p. 93. 

* Charters and Constitutions, II, 1411. 
^ History of South Carolina, I, 34^5. 
"^ This date is doubtful. "* Statutes of South Carolina, I, Preface, iii. 

4 



50 The Bicameral System in America. [254 

which he was directed to have all legislation prepared in the 
Council. " For there is noe thing to be debated or voted in 
y® Pari'., but w' is proposed to them by y® Councill." ^ The 
popular branch, however, would not consent willingly to have 
its power thus curtailed, and agitation upon the matter con- 
tinued until the final settlement in 1694. In that year Gover- 
nor Smith made the following significant announcement to the 
Assembly : " The proprietors have consented that the proposing 
power for the making of laws, which was heretofore lodged 
in the governor and council only, is now given to you as well 
as the present council." ^ ^' Henceforth,'' says Rivers,^ '* the 
Assembly claimed the privileges and usages of the House of 
Commons in England, and the proprietors allowed the claim.'' 
Under the royal government the bicameral system was retained.^ 
Under the constitution of 1776^ the legislature consisted of 
two houses, and the Council was chosen by the Assembly. The 
constitution of 1778^ provided for a Senate and a House of 
Representatives. 

Section IV. — Georgia, 

The history of Georgia contains almost nothing of import- 
ance for our present purpose. The colony was surrendered to 
the Crow^n in 1752, and two years later a royal government^ 
was established much resembling that of South Carolina. 
The legislature was bicameral, as might have been expected ; 
but in making a state constitution in 1777, Georgia followed 
the precedent of Pennsylvania and established a legislature 
consisting of a single house.^ 

In the constitution of 1789, however, provision was made 
for " two separate and distinct " houses.^ 

^ Rivers' Historical Sketch of South Carolina, App., p. 369. 

* Rivers, 171. Quoted from MS. Journal of the Commons, May 15, 1694. 
Also quoted in Winsor, Nar. and Grit. Hist, of Amer., V, 314. 

3 p. 171. '•See Ramsay, I, 95. ^Charters and Constitutions, II, 1617. 

6/6id., 1621. 

'Cf. Stevens' History of Georgia, II, 370-389; also Jones' History of 
Georgia, II, 460-487. 

« Charters and Constitutions, I, 378, 379. ^Ibid., 384. 



CHAPTER IV. 

The Federal Constitution. 

When the framers of the Constitution met in 1787 many 
of them were not novices in the science of constitution-making. 
On May 10, 1776, Congress had " recommended to the respec- 
tive assemblies and conventions of the United Colonies, where 
no government sufficient to the exigencies of their affairs" 
had " been hitherto established, to adopt such government as " 
should, " in the opinion of the representatives of the people, 
best conduce to the happiness and safety of their constituents 
in particular, and America in general." ^ Eleven ^ of the states 
acting upon this recommendation had adopted new constitu- 
tions before 1781. The experience of these four years so 
prolific of new constitutions could not fail to be beneficial to 
the members of the Federal Convention, and particularly so 
from the fact that many of them had been members of the 
constitutional conventions in their respective states.^ We are 
not surprised, then, to find immediate precedents for many of 



^ Journals of Congress, Vol. II, 166. The resolution was published with 
a suitable preamble on May 15. Ihid.^ 174. 

^ Connecticut prefixed a few short introductory paragraphs to her charter 
and retained it until 1818. Khode Island substituted the sovereignty of the 
Commonwealth of Ehode Island for that of the King and thus retained her 
charter until 1842. 

' Nathaniel Gorham was a member of the Massachusetts convention and 
one of a committee appointed to draft the constitution. Madison was a 
member of the Virginia convention of 1776. Gouverneur Morris, Jay, and 
Livingston were appointed a committee to draft the New York constitution 
of 1776. Morris also took a prominent part in the debates of the convention. 

51 



52 The Bicameral System m America. [256 

the elements of the Federal Constitution in these early state 
constitutions. This is especially true in case of the bicameral 
system. When the motion was made in the Convention that 
the national legislature should consist of two houses, the dele- 
gates from Pennsylvania alone voted in the negative. All of 
the states except Pennsylvania and Georgia had the bicameral 
system in their legislatures and naturally favored its introduc- 
tion into the national legislature. The sentiment in Georgia 
was evidently in favor of two houses, although she had at 
the time a single-chambered legislature. The delegates from 
that state voted with the majority, as we have seen ; and, in 
1789, the system, pure and simple, was introduced by her new 
constitution. It is highly probable, too, that Pennsylvania 
was in favor of the system, as we find it incorporated in her 
constitution of 1790. Madison tells ^ us that the delegates 
from Pennsylvania voted in the negative on this question 
probably in deference to the opinion of Franklin, who favored 
a legislature composed of a single house.^ 

The views of the states thus expressed through their consti- 
tutions could not fail to attract the attention of the members 
of the Federal Convention. Colonel Mason, in speaking of 
the advisability of having the national legislature to consist of 
two branches, said^ that he was thoroughly convinced that the 
American people desired more than one house in their national 
legislature and cited as proof of his assertion the fact that all 
of the states except Pennsylvania (and he should have excepted 
Georgia,^ also), had incorporated the bicameral system into 
their constitutions. 



1 Elliot's Debates, V, 135. 

^ The fact that Congress under the Articles of Confederation was composed 
of a single house was no doubt largely due to the influence of Franklin. 
The committee that drafted the Articles based them upon the plan of the 
same name submitted to Congress by Franklin on July 21, 1775. This plan, 
of course, provided for a unicameral legislature. The connection between 
the two documents is evident from a comparison of their texts. For Frank- 
lin's plan of 1775, see the Secret Journals of Congress, Vol. I, p. 283. 

3 Elliot's Debates, V, 217. * Charters and Constitutions, I, 378. 



257] The Federal Constitution. , 53 

Of the two opposing plans of government, that introduced 
by Governor Randolph and familiarly known as the ^^ Virginia 
Plan^' provided for a legislature consisting of two houses; 
while the plan brought before the Convention by Mr. Patterson, 
and known as the " New Jersey Plan/^ advocated a legislature 
composed of a single house. It must not be supposed, however, 
that the advocates of the '^ New Jersey Plan " were of necessity 
antagonistic to the bicameral system. They believed that the 
Articles of Confederation should be " revised,^' " corrected,^^ 
and " enlarged," and were opposed to the drafting of a form 
of government either entirely or essentially new. Indeed many 
of them considered that the Convention would be exceeding its 
authority by going beyond the mere revision of the Articles. 
Consistent adherence to this idea would involve the advocacy 
of a single-chambered legislature such as existed under the 
Articles of Confederation. 

Thus by 1790, the Federal and all of the state legislatures 
were composed of two houses ; and the legislatures of all of 
the other states upon their admission were similarly constituted, 
with the single exception of Vermont. Although not admitted 
until 1791, Vermont formed a constitution as early as 1777. 
This constitution ^ was an adaptation of the Pennsylvania con- 
stitution of 1776. This was due to the influence of Dr. Thomas 
Young, a man of note and a citizen of Philadelphia. Dr. 
Young had shown a great interest in the aifairs of Vermont 
and, when in a letter^ dated April 11, 1777, he recommended^ 
the Pennsylvania constitution as a model, his suggestion was 
speedily adopted. It has been thought that the Vermont 
constitution was drafted by Dr. Young, but there seems to be 
no positive evidence upon the matter. 



^ Charters and Constitutions, II, 1857. 

^ This letter is printed in Thompson's Vermont, pt. II, 106. 
- ^"This constitution/' says Dr. Young, "has been sifted with all the 
criticism that a band of despots were masters of, and has bid defiance to 
their united powers." Thompson's Vermont, pt. II, 106. 



54 The Bicameral System in America, [258 

The constitutions of 1786 ^ and 1793^ continued the single- 
chambered legislature, but an amendment to the latter, adopted 
in 1836,^ made " the general assembly of the State of Vermont " 
to consist of a Senate and a House of Representatives. 

From 1836 to the present time the state legislatures have 
uniformly consisted of two houses. 

In conclusion, then, we may note the fact that the causes 
which operated to separate the colonial legislatures into two 
branches were different in the different colonies ; and in most 
of them there was a gradual evolution of the system influenced 
either consciously or unconsciously by the English model. 
This English influence no doubt accelerated the appearance of 
the bicameral system. It was only six years after the founding 
of the colony of Massachusetts Bay that the two branches of 
the legislature were declared coordinate, and after a lapse of 
fourteen years they were deliberating as well as voting 
separately. 

Our survey of the subject also leads us to conclude that the 
bicameral system in the Federal Constitution is, in its growth 
and development, essentially American ; but the bicameral 
principle, the germ and genesis of the institution, must be 
sought on foreign soil. That there should be a sentiment in 
the Convention of 1787 all but unanimous in its favor, is not 
strange when we consider the abundant precedent therefor in 
the state constitutions, the colonial governments, and more 
remotely, in the English Constitution. In the gradual evolu- 
tion of the system we would naturally expect to find it a feature 
of the Articles of Confederation, and such doubtless would 
have been the case were it not for the influence of Franklin and 
the example of the Continental Congress. 



^ Charters and Constitutions, II, 1869. 

2J6id, 1877. Ubid., 188S. 



VI-VII 



White Servitude in the Colony of Virginia 



Wv^ 



JOHNS HOPKINS UNIVERSITY STUDIES 

IN 

Historical and Political Science 

HERBERT B. ADAMS, Editor 



History is Past Politics and Politics are Present History.— JVeeman 



THIRTEENTH SERIES 
VI-VII 



White Servitdde in the Colony of Virginia 

A STUDY OF THE SYSTEM OF INDENTUEED 
LABOR IN THE AMERICAN COLONIES 

By James Curtis Ballagh, A.B. 



baltimore 
The Johns Hopkins Press 

PUBLISHED MONTHLY 

Juue-July, 1895 



COPYEIQHT, 1895, BY THB JoHNS HOPKINS PBBSS. 



THK FBIKDKNWALD CO., PBINTKBS, 
BAI/riMOBB. 



CONTENTS. 

Introduction 9 

Chapter I. Servitude under the London Company. 

Early Colonists 11 

Land Tenure 17 

Classes 21 

Organization of Labor 23 

Tenants-at-halves, Apprentices, Servants 27 

Chapter II. Indented Servitude 33 

Legal Status of the Servant. 

First Period. 1619-1642 43 

Second Period. 1642-1726 49 

• Third Period. 1726-1788 65 

Social Status of the Servant 68 

Chapter III. The Freedman 81 

Chapter IV. Conclusions 89 

Bibliography .96 



SOURCES. 

The materials upon which this study is based are largely 
contained in: 

I. The Records of the Virginia Company of London, of 
which two MS. copies are extant: 

(a) The Collingwood MS. (i 619-1624), 2 v. folio, Library 
of Congress, Washington, D. C, prepared for the Earl of 
Southampton from the original records of the Company, 
now lost, in 1624, and compared with them page by page by 
the secretary, Edward Collingwood, and attested by his sig- 
nature. Through the copious abstracts by the late Conway 
Robinson, Stith's History of Virginia and the publications 
of the Rev. E. D. Neill, this MS. is largely accessible in print. 

(b) The Randolph MS., formerly the property of John 
Randolph of Roanoke, now in the library of the Virginia 
Historical Society, Richmond, 2 v. folio, an i8th century 
transcript of the Collingwood MS.; and i v. folio of miscel- 
laneous correspondence, orders, instructions, etc. (161 7 — ). 

IL Documents, correspondence, orders, instructions, 
proclamations, laws by the Company, Governors' commis- 
sions, etc., 1 587-1 730, to be found in Purchas, Hakluyt, 
Force, Brown's Genesis of the United States (1605-1616), 
Smith's works (1606- 1624), Calendars of English State 
Papers (Colonial, East Indies, Domestic, 1 578-1676), Jefifer- 
son MSS. (1606-1711), MacDonald, De Jarnette, Sainsbury 
and Winder collections (Virgina MSS. from the British 
Record Office, 20 v. folio, 1 587-1 730), Colonial Records of 
Virginia (1619-1680), Land Books (1621 — ), and reprints of 
valuable early papers in the Virginia Historical Register and 
the Virginia Historical Magazine. 

HI. (a) The Records of the General Court of Virginia 
(1670-76), the Robinson MS. (1633 — ), containing valuable 



8 Sources. [266 

abstracts from the General Court records and other papers 
since destroyed, the MS. Letters of Wm. Fitzhugh (1679- 
1699), the MS. Letters of Wm. Byrd (1683-1691), and the 
Virginia Gazettes (1737 — ), all in the possession of the Vir- 
ginia Historical Society. 

(b) The MS. County Records of Accomac (1632 — ), York 
(1633-1709), Essex (1683-86), Henrico (1686-99), State Lib- 
rary, Richmond, Virginia. 

(c) Hening, Statutes at Large of Virginia (1623- 1792), 
and contemporary descriptions of Virginia; Whitaker 
(1613), Hamor (1614), Rolf (1616), "A Declaration," etc. 
(1620), Bullock (1649), Williams (1650), Hammond (1656), 
Blair, Chilton and Hartwell (1696), Beverley (1705), Jones 

(1724). 

Such other authorities as have been referred to will appear 
in the appended bibliography. 

I desire to express my thanks to Philip A. Bruce, Esq., 
of the Virginia Historical Society; to Messrs. W. W. Scott 
and W. G. Stanard, of the Virginia State Library; to Col. 
R. A. Brock, of the Southern Historical Society, and to 
Hon. A. R. Spof¥ord, Librarian of Congress, for their 
courtesy in rendering these authorities accessible to me; 
also to Professors Adams, Emmott and Vincent, of the 
Johns Hopkins University, for valuable suggestions. 

J. C. B. 



INTRODUCTION. 

The chief interest in the colonial history of America has 
always centered in the development of political institutions, 
which, from their importance and endurance, have become 
of wide significance. For this reason it has been customary 
to overlook, or to treat as processes subsidiary to the politi- 
cal evolution, many interesting social and economic develop- 
ments, which were of great moment in the history of the 
colonial period as furnishing the material background of this 
political development and giving it its distinctive character. 

In this paper an attempt has been made to trace the growth 
and significance of one such social institution as a result of 
the peculiar conditions under which the actual colonization 
took place. Though the study is limited to the experience 
of a single colony, that experience becomes, through the 
exceptional position occupied by that colony, broadly char- 
acteristic of the institution in general, and in all important 
particulars typical of the legal form which servitude assumed 
in the other colonies. 

The main ideas on which servitude was based originated 
in the early history of Virginia as a purely English colonial 
development before the other colonies were formed. The 
system was adopted in them with its outline already defined, 
requiring only local legislation to give it specific character 
in each colony. Such legislation was in some cases directly 
copied from the experience of Virginia, and when of inde- 
pendent or prior origin was largely determined by condi- 
tions more or less common to all the colonies, so that in 
its general legal character the institution was much the same 
in all. The similarity was more striking, both in theory and 
in practice, in the agricultural colonies of Virginia, Mary- 
land and Pennsylvania, and particularly in them was it of 
industrial importance. 



10 



Introduction, 



[268 



The conditions in the other middle colonies, New Eng- 
land, the Carolinas and Georgia, were somewhat different 
and not so favorable to the existence of such an institution. 
It consequently neither reached so full a development nor 
continued to exist so long, but while it did it was of consid- 
erable social and economic importance, and its effects, 
though not so marked, were much the same. 

The object of the present paper, then, is to show: 

First, the purely colonial development of an institution 
which both legally and socially was distinct from the insti- 
tution of slavery, which grew up independently by its side, 
though the two institutions mutually affected and modified 
each other to some degree. 

Second, that it proved an important factor in the social 
and economic development of the colonies, and conferred a 
great benefit on England and other portions of Europe in 
offering a partial solution of their problem of the unem- 
ployed. 



WHITE SERVITUDE IN THE COLONY OF 
VIRGINIA. 



CHAPTER I. 

SERVITUDE UNDER THE LONDON COMPANY. 

The failure of individual enterprise to establish a perma- 
nent colony in America, and the example of successful com- 
mercial corporations, led to an adoption in England of the 
corporate principle in regard to colonization as well as to 
trade. The Virginia Company of London, created by let- 
ters patent from King James I., April lo, 1606, was or- 
ganized as a joint stock company on the general plan of such 
commercial corporations, and particularly on that of the 
East India Company. The two Companies had the same 
Governor. The distinction between them lay in the fact that 
the avowed object of the Virginia Company was to establish 
a colony of which trade was to be a result, while the India 
Company aimed at trade alone, and the colonization which 
resulted was merely incidental.'' 

Though the Virginia Company was composed of two sep- 
arate divisions, the London Company and the Plymouth 
Company, the former, which alone effected a permanent col- 
onization, is of interest to us. The charter members of this 
Company were largely merchants of London, and after its 
organization was perfected two classes of membership were 
distinguished: first, "Adventurers," who remained in Eng- 

^ Stephens, p. viii.; Bruce, I., 112, 136, 138, 154, 165; S. P. E. 
I., 10, 215; Cunningham, Growth of English Industry and Com- 
merce, p. 268, cf. 125, 151, 267. Charter of 1606, Brown, p. 72. 
The peculiar feature of a Royal Council for the government 
of the Virginia Company was a result of this distinction. 



12 White Servitude in the Colony of Virginia. [270 

land and subscribed money towards a capital stock; and, 
second, "Planters," who went in person as colonists, and 
were expected by their industry or trade to greatly enlarge 
the stock and its profits. Shares of adventure were granted 
for each subscription of £12 los. to the stock, and also for 
each " adventure of the person," entitling the holder to par- 
ticipate proportionately to his shares in all divisions of 
profits, both those resulting from the industry of the colo- 
nists and those resulting from trade, and besides this to 
receive a land grant of some nature for each share. A com- 
munity of property and of trade was to be established in the 
colony for five years after the first landing of the colonists, 
and at the end of that time doubtless a division of profits 
and of land was promised.^ 

^ Nova Britannia, Force, I., 24, 28; Brown, Genesis of the U. 
S., I., 228, 229; Charter of 1609; Va. Mag. of Hist, and Biog., 
Oct., 1894, Vol. II., 156, 7, Instructions to ^Eeardley: Decl. of 
Anct. Planters, Col. Rec. Ya., 81. We have nothing extant to 
show the exact terms on which the colonists of 1606-7 as a 
whole, and the " supplies " until 1609, came to Virginia. When 
we come to the latter year we have in a pamphlet (Nova 
Britannia) and in a " broadside " of the Company, both issued 
to attract new adventurers and planters, a perfect outline of 
the Company's policy at that time. There is nothing, however, 
so far as I have been able to discover, that contradicts the 
view that the outline as we have it for 1609 was in its general 
character that of 1606, the chief difference being the length 
of the term, which was probably five years in 1606 instead 
of the seven years of 1609; on the contrary, all the evidence 
we have goes to substantiate this theory. In 1618, the instruc- 
tions to Yeardley ordered that 100 acres of land be granted 
to each share owned by every planter, whether sent by the 
Company or transferred at his own charge before the coming 
away of Dale in 1616. This included some of the colonists of 
1607. The patent of 1606 specially authorizes the council of 
the colony to pass lands, declaring all lands passed " by letters 
patent shall be sufficient assurance from the said patentees, so 
divided amongst the undertakers for the plantations of the 
said several colonies," and shows that a division of land was 
contemplated. (Brown, I., 63.) This is established by the fact of 
Ancient Planters of 1607 receiving in later years grants of 
lands for their personal adventure, and also for subscriptions 
to stock. Captain Gabriel Archer's brother inherited one grant 



271] Servitude under the London Company. 13 

This so-called communal system was provided for in his 
Majesty's instructions issued a short time after the granting 
of the patent to the Company. They were to "trade to- 
gether all in one stocke or devideably, but in two or three 
stocks at most and bring not only all the fruits of their 
labours there, but also all such other goods and commodities 
which shall be brought out of England or any other place 
into several magazines or store-houses," and " every person 
of the said several colonies " was to " be furnished with all 
necessaries out of those several magazines or store-houses 
for and during the term of five years." An officer called 
the treasurer or "cape merchant" was to administer this 
magazine in connection with the President and Council, ac- 
counting for all goods taken into and withdrawn from this 
joint stock."" 

The position of an early planter was thus theoretically 
that of a member of the Company, who was to receive in 
lieu of his service for a term of years his maintenance dur- 
ing that time, or his transportation and maintenance, at the 
Company's charge. For the adventure of his person, as 
well as for every subscription of £12 los., he received a bill 
of adventure which entitled him to the proportion that 

of land from him, and Anthony Gosnold, in 1621, received a 
share for personal adventure sixteen years before at his own 
charge. Of. Brown, II., 814; Neil, Va. Co., 257; Arber's Smith, 
390; Burke, Vol. II., 332, 333, 334, under names Dodds, Simons, 
Martin. It is not to be supposed that mere adventure or gold- 
seeking would have constituted a suflScient motive to induce 
many persons to make such an experiment. A land grant of 
some kind was undoubtedly promised before 1609 in addition 
to the proportional share of profits. This was in accordance 
with the policy under which earlier attempts at discovery or 
colonization had been made. Gilbert's Articles of Agreement 
with the Merchants Adventurers in 1582, under his patent of 
15T8, show the same general principle of Adventurers of the 
purse or person and of land grants, and Garlyle's project pre- 
sents a scheme of " Adventurers " and " Enterprisers " who are 
to share equally in the lands, &c., discovered. Sainsbury MS., 
I., 32, 35; Haklyut, III., 234, 235; Va. Hist. Mag., Oct. '94, 186. 
^ Brown, I., 71, 72. Instructions, Nov. 20, 1606. 



14 White Servitude in the Colony of Virginia. [272 

would fall to a single share in a division of Jand and profits. 
As a member he stood on an equal footing with all other 
members and stockholders/ Practically, however, as we 
shall see, he was, at least during the first twelve years of the 
Company's government, little better than a servant manipu- 
lated in the interest of the Company, held in servitude be- 
yond a stipulated term, and defrauded of his just share in 
the proceeds of the undertaking. 

The administration of Sir Thomas Smith, the first Treas- 
urer of the Company, even when we allow for the exagger- 
ated statements of the planters, was undoubtedly hurtful to 
the welfare of the infant colony. His policy was one of im- 
mediate gain. The success of the East India Company, 
whose first Governor he also was, as a trading corporation, 
probably led to his desire to conduct the Virginia Company 
on much the same principles. The welfare of the colonists 
was neglected, and the project of true colonization seems to 
have been lost sight of in the desire to exploit the riches of 
an unknown country and to discover the long sought-for 
passage to the South Seas. Though some i8o,ooo had been 
spent in twelve years, the Company, when turned over to 
Sir Edwin Sandys in 1619, was in debt £8000 or £9000, and 
there had survived but a bare fourth of near two thousand 
colonists that had been sent over.^ Restrictions had been 
put upon the planting of corn, and the colonists were wholly 
dependent on the poor supplies from England or the doubt- 
ful generosity of the Indians. This policy had reduced the 

^ Va. Co. Rec, II., 94, 111. Stith, Append. 26. Later, when 
separate courts were established, subsequent to the charters 
of 1609 and 1612, for governing the Company, whenever mem- 
bers had a voice in these courts, the Virginia, colonist enjoyed 
a like privilege, if he happened to be in England. 

=^Va. Co. Rec, I., 4, 64, 181. Va. Hist. Mag., Oct., 1893, 157. 
Of more than 800 colonists sent during the first three years, 
only about sixty survived; of a still larger number sent before 
1619, but 400 were alive when Yeardley came, and half of these 
were unfit for work. Arber's Smith, Introd., exxix.; Col. Rec. 
Va., 72, 80. 



273] Servitude under the London Company. 15 

colony in 1609 to but fifty persons, and discontent with the 
aristocratical form of the Company's government and its 
bad administration led to a petition for a new charter. This 
charter constituted the London Company of Virginia a sep- 
arate corporation from the Plymouth, defined the boundaries 
of its territory, and vested it with powers that gave it a more 
independent and republican character.^ 

To obtain fresh settlers the Company now issued broad- 
sides and pamphlets, with specious promises, which, how- 
ever honest its purpose, were certainly never fulfilled. There 
is evidence, however, in these advertisements to indicate 
that the Company consciously imposed on prospective set- 
tlers. One broadside solicits "workmen of whatever craft 
they may be — men as well as women, who have any occupa- 
tion, who wish to go in this voyage for colonizing the coun- 
try with people — they will receive for this voyage five hun- 
dred reales" for each one — houses to live in, vegetable gar- 
dens and orchards and also food and clothing at the expense 
of the Company — and besides this they will have a share of 
all the products and profits that may result from their labour, 
each in proportion, and they will also secure a share in the 
division of the land for themselves and their heirs forever- 
more."^ A letter to the Lord Mayor, Aldermen and Com- 
panies of London ofifers similar terms and a definite grant 
of " one hundred acres for every man's person that hath a 
trade or a body able to endure days labour, as much for his 
child that are of yeares to do service to the colony with fur- 
ther particular reward according to their particular merits 
and industry." The full policy of the Company appears in 
a pamphlet issued by it about the same time; the object was 
to raise both men and money. Shares were set at twelve 
pounds ten shillings, and every "ordinary" man, woman 
and child above ten years that went to the colony to remain 

^~Stith, Append. 8; Nova Britannia, Force, I., 23. 
^ The equivalent of £12 10s., or the expense of transportation. 
Brown, I., 252. 
'lUd., 248. 



16 White Servitude in the Colony of Virginia, [274 

was allowed for his person a single share as if he had sub- 
scribed the required sum of money. Every " extraordinaire " 
man, as Divines, Governors, Ministers of State and Justice, 
" Knights, Gentlemen, Physitians," or such as were '* of 
worth for special services," were rated and registered by the 
Council according to the value of their persons. The Com- 
pany on its part agreed to bear all the charges of settling 
and maintaining the plantation and furnishing supplies in a 
joint stock for seven years. There was to be no private 
trading, and "as we supply," they say, "from hence to the 
Planters at our owne charge all necessaries for food and 
apparel, for fortifying and building of houses in a joynt 
stock so they are also to return from thence the encrease 
and fruits of their labours for the use and advancement of 
the same joynt stock till the end of seven years; at which 
time we purpose (God willing) to make a division by Com- 
missioners appointed of all the lands granted unto us by his 
Majestie to every one of the colonists according to each 
man's several adventure agreeing with our Register booke 
which we doubt not will be for every share of twelve pounds, 
ten shillings, five hundred acres at least." A large increase 
of the stock is anticipated from the success of the colony, 
"which stock is also (as the land) to be divided equally at 
the seven years end or sooner, or so often as the Company 
shall think fit for the greatness of it to make a dividend." 
It was hoped that this would free them from further dis- 
bursements and would be an encouragement to the planters, 
as their share in the profits would thus be larger from a 
smaller number of shares owned by adventurers coming 
mto the dividend. In order to secure promptness in the 
payment of subscriptions, every man was to be registered 
according to the time his money or person began to adven- 
ture. The division of lands was to be just, and to insure this 
it was to lie in scattered lots both good and bad, while the 
commissioners were to be chosen equally by adventurers 
and planters. 

Regardless of these professions, when the seven years had 



f 



275] Servitude under the London Company, IT 

passed the Company proposed to allow only fifty acres of 
land to a share in a division of land about to be made, and 
alleged in excuse that they were not in possession of more, 
and that it was "not as yet freed from the encumber of 
woods and trees nor thoroughly survayed,'' yet they hoped 
*' future opportunity will afford to divide the rest which we 
doubt not will bring at least two hundred acres to every 
single share." The division was in fact to be made not in 
performance of their obligations, but as a measure to raise 
further money for the expenses of the Company. No ad- 
venturer was to be permitted to share in the division unless 
he made a further subscription of £12 los. (or more if he 
chose) to the Company's treasury. If he failed to do this 
he was to wait for some future division for his share, which 
would lie in some remote place and not along James river 
and " about the New Townes erected," as the lands of the 
present division did. The Company even went to the extent 
of admitting new adventurers, on a payment of the subscrip- 
tion, to equal shares in the division, in utter disregard of the 
rights of the old adventurers and of the planters in Virginia. 
Captain Argall was sent with commissioners and surveyors 
in 1616 to effect this division, and was granted in his own 
right a large plantation in the colony. It does not appear 
that the Virginia planters, except large shareholders like 
Captain John Martin and Lord Delaware, and possibly the 
men who had obtained their freedom in 161 7 for building 
Charles City, ever participated in the division at all."" 

No general private ownership of land in severalty seems 
to have existed in Virginia until the arrival of Yeardley as 
Governor in 161 9. The body of the colonists were forcibly 
kepf out of their rights, and if they had estates, had no assur- 

^Nova Brit., Force, I., 24, 25. New Brit, Brown, I., 273, 274. 
The charter of 1609 empowered the appointment of such a 
commission. 

=^ Brown, H., 777, 778, 779. "A Brief Declaration," 1616; Va. 
Hist. Mag., Oct., 1893, 158. Discourse of the Old Company, 
1625; Va. Co. Rec, II., 196; Winder MS., I., 16. In justice to 
the Company, however, it should be said that its finances were 



18 White Servitude in the Colony of Virginia. [276 

ance of their titles before that time. Certain corporate rights 
to land, however, belonged, as early as 1617, to such cor- 

in a very bad state. They had suffered greatly from traducers 
of the plantation both in England and Virginia. Many of the 
original subscribers became so disheartened by this or the mis- 
management of the Company that they refused to pay up their 
subscriptions, and the Company was compelled to go into debt, 
relying upon the private purses of its warmest supporters. The 
state of affairs became so bad by 1612 that the Company took 
care to secure in its third charter the insertion of a special 
clause empowering them to collect subscriptions from its mem- 
bers. (Brown, II., 625.) In Nov. and Dec, 1610, on the re- 
port of Sir Thomas Gates of the imperative necessity of sup- 
plies, the Company determined that all adventurers, both those 
already free of the Company (i. e., who had paid up), and those 
who desired to be free, should subscribe at least the sum of 
£75, to be paid in three years, twenty-five each year, " towards 
a newe supply to be sent for the relief of the said colony in 
Virginia." Many members and other persons came to the re- 
lief of the Company, but a number of knights and gentlemen 
who subscribed refused to pay, and the Company was forced 
in 1613 to petition for the King's writ to sue in the High Court 
of Chancery for the amounts due. Brown, II., 623-630, Brooke 
to Elsmere. 

Lotteries were also used as a means of obtaining ready money, 
and in one to be drawn in 1614, every man who adventured £12 
10s. in the lottery could have either his prize or a Bill of Ad- 
venture to Virginia, with his part in all lands and profits arising 
from it. Adventurers who had not paid up their subscriptions 
were permitted, on the payment to the Treasurer, in money, of 
double the sum for which they had subscribed, both to be free 
of the Company and to share in the lottery for the whole amount 
paid in. If not satisfied with their drawings they could have 
Bills of Adventure instead. The Company even declares that 
if the colonists in Virginia were " now but a little while sup- 
plied with more hands and materials, we should the sooner 
resolve upon a division of the country by lot, and so lessen the 
General charge by leaving each several tribe or family to hus- 
band and manure his owne " {IMd., II., 762, 763, 764). 

Whatever difficulties incident to a new plantation the Com- 
pany may have had to overcome, these were undoubtedly en- 
hanced by the maladministration of Sir Thomas Smith and his 
officers. The accounts were left in such a disorderly state when 
the government was turned over to Sandys that Smith's in- 
tegrity was open to grave doubts. Though his accounts were 
carefully examined and he was given an opportunity to clear 
up the discrepancy, it was never satisfactorily explained. Va. 
Co. Rec, I., 181; II., 83, 84, 251. 



277] Servitude under the London Company. 19 

porations as Bermudas Hundreds, and a few "particular 
plantations " had been established by the common action of 
a number of adventurers or planters banded together in 
societies, sometimes with exceptional grants of jurisdiction 
that made them practically independent manors. Though 
the grants themselves in some cases dated as early as 1616, 
the establishment of these independent proprietaries was 
comparatively slow, and they increased in number very little 
before 1619/ The year 1616 seems to have marked a 
change in the policy of the Company toward land grants, 
and in general to the disadvantage of the colonist. When 
an actual division of land was made to shareholders in 16 19 
only those who had subscribed or had come to the colony 
before the departure of Dale in 1616 were considered to hold 
" Great Shares," or " Shares of Old Adventure," which en- 
titled them to a grant of 100 acres, while the holders of 
shares issued since that time could claim but 50 acres a 
share."" Though a few exceptional grants were possibly 

^Va. Mag. Hist, and Biog., Oct., 1893, 158, 160, Discourse of 
the Old Company. lUd., Oct., '94, 160, Instructions to Yeardley. 
MS. Rec. of Va. Co., III., 140; Robinson MS., 146; Winder MS., 
I.. 16; Company's Register, 1615-23; Col. Rec. of Va., 20 et seq., 
Va. Co. Rec, I., 62, 65. 

The first of the societies known as Hundreds of any import- 
ance was Smith's Hundred, so called from Sir Thomas Smith, 
one of the subscribers to its fund, and it seems to have been 
established subsequently to April, 1618. In 1620 it became 
Southampton Hundred. Another was Martin's Hundred. Other 
plantations were established either by some ancient adventurer 
or planter, associating others with him, as Argall'g, Martin's 
and Lord Delaware's plantations, or by new adventurers joining 
themselves under some one person, an example of which is 
seen in Christopher Lawne's plantation. The failure of the 
Company itself as a successful colonizing agent and its very 
weak financial condition was the sole occasion of this private 
enterprise. 

^No dividend, except of lands, was ever declared in favor 
of the colonists, nor is there any record of a division of profits 
amongst the adventurers generally. The division of land that 
was made fell far short of the promises of the Company under 
which the shares were taken. The Ancient Planters, by the 
Company's orders, in 1619 were to have the 100 acres as a first 



20 White Servitude in the Colony of Virginia. [278 

made to individuals by governors before Yeardley, they had 
no assurance of their titles, and we can regard no earlier 
date than 1619 as that of the full and general establishment 
of the rights of private property in land in Virginia.^ 

This communal system continued without a break until 
the year 161 3, when a variation was introduced in the con- 
ditions of service of a number of the colonists and in their 
relation to the land. A sort of qualified property right was 
given them by the introduction of a tenancy-at-will on small 

division, and a future increase of this was promised only to 
those who had gone at their own charge. Their rights to be 
favored above those who went after the greatest hardships 
were over were apparently recognized by the Instructions, but 
they themselves in their first Assembly seem to have felt suf- 
ficient doubt as to its possible construction to petition the Com- 
pany that "they have the second, third and more divisions as 
well as any other planter," and shares also for their male chil- 
dren and issue. The latter request was not granted, but they 
appear to have been put on equal footing with other planters 
in subsequent land grants, which depended on a peopling of 
the tract first granted. I can find no evidence of a second or 
third division ever having been made. Arber's Smith, 526; Va. 
Hist. Mag., Oct., '94, 156, 157; Va. Co. Rec, I., 14, 15; Stith, 
139; Col. Rec. Va., Assembly of 1619. 

^I can find no authority whatever, except an erroneous read- 
ing of Stith (p. 139), for Chalmers' assertion that private prop- 
erty in land was instituted by Dale in Virginia in the year 
1615 by a grant of 50 acres in fee to every free man in the 
colony. All the evidence we have proves conclusively that no 
such grant of lands was made, nor does Stith ascribe the change 
in the Company's policy at this time to Dale; it was the result, 
however, of the prosperous condition of the colony, which was 
largely the work of Dale. Dale was in England June 12, 1616, 
probably before the time of the issue of the Brief Declaration 
relating to the dividend of 50 acres, and it is possible if this 
were so that he was consulted in the matter. There is no au- 
thority, however, for the statement that it was due to his 
influence. From the " Declaration " itself it seems to have been 
dictated by other motives. Chalmers gives Stith as his author- 
ity on this point, and the mistake has crept into Virginia his- 
tories on the sole authority of Chalmers. He further errs in 
the date, while Stith gives it correctly. Stith, 139; Chalmers' 
Pol. Annals, 36; Campbell, 116; Cooke, 110; Burke, I., 177; Doyle, 
Va., Md. and the Carolinas, 152. 



279] Servitude under the London Company, 21 

tracts of land belonging to the Company, either at a fixed 
rent or on certain conditions of service to the colony.^ 

This change was brought about by the intolerable condi- 
tions of servitude and the right which the few remaining 
colonists of 1607 probably had to demand a release under 
their five-year contracts now expired. The Bermuda plan- 
ters petitioned Governor Gates for permission to plant corn 
for a subsistence, as the Company had been dereHct in fur- 
nishing supplies. This petition was denied unless they ac- 
cepted a tenantship-at-will, paying a yearly rent of three 
barrels of corn and giving a month's service to the colony.^ 
The condition of the rest of the colonists was less fortunate ; 
they were either retained in their servitude or granted, as 
tenants, small farms on condition of giving eleven months 
of the year to the benefit of the common store, from which 
they received but two barrels of corn. 

By 1 61 6 further modifications had taken place, chiefly in 
favor of the farmer class, who had become a source of profit 
to the Company and now numbered nearly a third of the 
colonists. The time of their service was reduced to thirty- 
one days, rendered at their convenience, and they were 
allowed to rent laborers from the colony as their servants. 
They paid a small rent for their farms and v/ere responsible 
for their own maintenance and that of their servants. These 
laborers were men transported at the Company's charge, 
and could be disposed of by the Governor for the best inter- 
ests of the colony, as their maintenance would otherwise de- 
volve upon the Company. Governor Dale placed a number 
of these on a tract of land called the " common garden," and 
applied the proceeds of their labor to the maintenance of 
their overseers and the public officers of the colony. The 
skilled laborers and artificers, such as carpenters and smiths, 
constituted another class and worked at their trades for the 



^ Stith, 131, 132; Chalmers, 34; Purchas, 1766 (Hamor). 
=^Decl. of Anc. Planters, Col. Rec. of Va., 75; Chalmers, 39; 
Stith, 132; Purchas, 1766. 



22 White Servitude in the Colony of Virginia, [280 

colony, while they had land and time allotted them to till 
ground for their maintenance/ The freedom thus given to 
officers, farmers and skilled laborers was only conditional, 
depending on a responsibility for their own maintenance, 
while full control continued to be exercised over those who 
depended on the Company for support. This system con- 
tinued without any important change until 1619. 

Some distinction of classes existed in the colony from the 
earliest days. Society was influenced by its personnel, and 
doubtless also by the fact that many of the colonists, unable 
to pay their transportation, were either sent upon the com- 
mon charge of the Company or of adventurers in England. 
Many of the gentlemen among the first immigrants took 
with them valets and servants on stipulated wages. The 
Company also, beside its seamen and soldiers, had servants 
in its employ on wages.^ This class, however, was small 
and exceptional, and the bulk of the colonists went as mem- 
bers of the Company, either at their own charge or at the 
charge of the Company or of some private person. The 
hardships of the early years left little opportunity for the 
growth of an aristocratic sentiment, though we find the dis- 
tinctions of class frequently recognized and the offices ab- 
sorbed by a limited number of gentlemen. Beyond this, 
little practical distinction existed. All were colony servants 
alike and suffered much the same exactions. 

Up to 161 3 they were worked as hirelings of the Com- 
pany, receiving but a miserable support in lieu of their ser- 
vices. A portion of them, we have seen, then became ten- 
ants on the Company's land on hard conditions of tenure. 

^Va. Hist. Reg., I., 107-110, Rolf's Relation, 1616; Purchas, 
Pilgrimes, 1766, Hamor's Narrative; Purchas, His Pilgrimage, 
837; Va. Co. Rec, I., 65. The farms consisted of three acres, 
and the rental of a servant was two barrels and a half of 
corn. 

' Smith, Hist, of Va., I., 241; Neil, London Co., 13, Early Set- 
tlement; Third Rept. of Royal Comm. on Hist. MSS., Appd., 58; 
Arber's Smith, 107, 122, 448, 486, 487, cxxix.; MS. Rec. Va. 
Co., III., 142; Brown, II., 550. 



281] Servitude under the London Company. 23 

Others, through the influence of Dale, were induced to serve 
the colony in the " building of Charles City and Hundred "^ 
three years longer, on the promise of absolute freedom from 
the " general and common servitude " so much abhorred. 
They were allowed but a month in the year and a day in the 
week to provide for themselves, and were afterwards de- 
prived of half of this time, so that they were forced, as they 
say, "out of our daily tasks to redeem time wherein to 
labour for our sustenance thereby miserably to purchase our 
freedom."^ The favored Bermuda planters were finally 
given a charter of incorporation and enjoyed better terms, 
but were bound to the performance of certain duties for 
a limited time before they could have their freedom.' 

When Lord Delaware came in 1610 with fresh supplies 
he thoroughly organized the colony as a labor force under 
commanders and overseers.* Dale afterwards applied a rig- 
orous military system adopted from the Low Countries, and 
enforced it with great severity in carrying out his plans for 
establishing new plantations. The colonists were marched 
to their daily work in squads and companies under officers, 
and the severest penalties were prescribed for a breach of 
discipline or neglect of duty. A persistent neglect of labor 
was to be punished by galley service from one to three years. 
Penal servitude was also instituted ; for " petty ofifences " 
they worked " as slaves in irons for a term of years." The 
planters affirm that there were "continual whippings and 
extraordinary punishments," such as hanging, shooting, 
breaking on the wheel, and even burning alive, but it is 
likely they much exaggerated the state of afifairs. The sys- 
tem at least proved salutary. Towns were built and palis- 

^Col. Rec. Va., 68, 81. 

*Stith, 132; Purchas, Pilgrimes, 1766; Gol. Rec. Va., 75, 76. 
" Having most of them served the colony six or seven years in 
that general slavery." 

=• Va. Hist. Reg., I., 109, Rolf's Relation, 1616. 

*Lord Delaware's Letter to the Patentees in England, July 7, 
1610; Hist, of Travaile into Virginia Britannia, In trod., Hakluyt 
Soc, 34. 



24 White Servitude in the Colony of Virginia. [282 

aded, and the colony was reduced to thorough order.^ 
Under the arbitrary rule of Governor Argall this system 
was to some extent revived. " Three years' slavery " to the 
colony was the penalty for a violation of his edicts, and 
absence from church w^as punished with " slavery " from a 
week to a year and a day/ 

No freedom was granted from the common servitude until 
March, 1617, when the three-year contract made by Dale 
with the men of Charles City Hundred had expired and they 
demanded their " long desired freedome from that general 
and common servitude." Governor Yeardley willingly as- 
sented to this reasonable request, as they had now served the 
colony for nine or ten years/ No further extensive grant of 
freedom was made until he came as Governor in 1619, bring- 
ing a proclamation of freedom to most of the ancient plan- 
ters. Whenever it was obtained before this it was only at 
an " extraordinary payment," and throughout the first ad- 
ministration of Yeardley and that of Argall the great ma- 
jority of the colonists remained in their former condition, 
which the ancient planters with little exaggeration termed 
" noe waye better than slavery."* Their rights as English- 

^Col. Rec. Va., 68, 69, 81; Force, III., 1647, Laws; Gal. State 
Papers, Col. 39. Dale's justification is to be found in the 
character of the colonists with whom he had to deal. Cf. Let- 
ter Dale to Salisbury, Brown, I., 506. 

^ See MS. Rec. Va. Co., III., 143, for a number of these edicts. 
Two instances may serve to illustrate the policy of her govern- 
ment. Goods were to be sold to the colonists from the magazine 
at 25 per cent, profit, while the price of tobacco was fixed at 
3 shillings. A violation of this edict was punished with three 
years' servitude to the colony. " Every person to go to church 
Sundays and holydays or lye neck and heel on the corps du 
guard the night following and be a slave the week following, 
second offence a month, third offence a year and a day." 

» Col. Rec. Va., 77; MS. Rec. Va. Co., III., 142. 

*Col. Rec. Va., 75, 78, 81. "Good Newes from Virginia," 11, 
21, 32 and E. D. The numerous letters sent by the Governor and 
General Assembly, 1621-1623, to prevent a re-establishment of 
Sir Thomas Smith's government in the Company, while ex- 
pressed in extravagant language, bear witness to the very ar- 



283] Servitude under the London Company. 25 

men, guaranteed by the first charter of the Company, had 
practically no recognition before the arrival of Yeardley. 

In 1618 the popular party in the Virginia Company tri- 
umphed over the court party, and Sir Thomas Smith was 
ousted from the governorship and Sir Edwin Sandys elected 
in his stead. An almost complete change of policy was the 
result; a new Governor was sent in the person of Yeardley 
to supplant the rapacious Argall. Yeardley carried with his 
commission an important concession of rights to the Vir- 
ginia planters. A new regime of freedom and representa- 
tive government, coupled with full rights of private property 
in land and a responsible governorship, now began in the 
colony. Yeardley did not bring freedom to all the ancient 
planters, but only to all those who had gone at their own 
charge previous to the departure of Dale in 1616, and to 
those who, sent at the Company's charge, had already served 
the full time of their servitude to the colony.^ Many were, 
however, still retained in servitude until the end of their 
terms, and the Company, until its dissolution in 1624, con- 
tinued to send others at the Company's charge on terms of 
servitude modified to suit the changed conditions in the 
colony. 

We see, then, that the colonist, while in theory only a Vir- 

bitrary treatment of the colonists during the first twelve years 
of the Company. Facts were attested hy many persons who had 
been actual sufferers, and afiirm that many of those whose 
lives had been recklessly sacrificed were not of mean rank, as 
alleged by Smith and Alderman Johnson, but of " ancient houses 
and bom to estates of £1,000 by the year, some! more, some less 
who likewise perished by famine, those who survived who had 
both adventured their estates and persons were constrained to 
serve the colony (as if they had been slaves) seven or eight 
years for their freedoms who underwent as hard service and 
labors as the basest fellow that was brought out of Newgate." 
" Rather than be reduced to live under like government," they 
say, " we desire his Majestic that Commissioners may be sent 
over with authority to hang us." Winder MSS., I., 47-52. Cf. 
lUd., 30, and MS. Rec. Va. Co., III., 168, 179, 180, 235. Cf. 
" Good Newes from Virginia," II., 21, 32 sq. 
' Va. Hist. Mag., Oct., 1894, 157. 



26 White Servitude in the Colony of Virginia, [284 

ginia member of the London Company, and entitled to equal 
rights and privileges with other members or adventurers, 
was, from the nature of the case, practically debarred from 
exercising these rights. As a planter absent in Virginia he 
could not sit nor have a voice in the councils of the Com- 
pany; he was entirely dependent on the Company's good 
faith for the performance of its obligations, and had recourse 
to no means to enforce their performance. He was kept by 
force in the colony,"" and could have no communication with 
his friends in England. His letters were intercepted by the 
Company and could be destroyed if they contained anything 
to the Company's discredit. He was completely at the 
mercy of the edicts of arbitrary governors, and was forced 
to accept whatever abridgment of his rights and contract 
seemed good to the Governor and the Company.^ His true 
position was that of a common servant working in the inter- 
est of a commercial company. In lieu of his support, or of 
his transportation and support, he was bound to the service 
of this company for a term of years. Under the arbitrary 
administration of the Company and of its deputy governors 
he was as absolutely at its disposal as a servant at his mas- 
ter's. His conduct was regulated by corporal punishment 
or more extreme measures. He could be hired out by the 
Company to private persons, or by the Governor for his 
personal advantage. 

Suggested by the policy of the Company, there gradually 
grew up after the year 1616 and the establishment of separate 
plantations, the practice on the part of societies of planters, 
and later of private persons, of transporting servants to set- 
tle and work their lands very much on the same conditions 

^Not till winter of 1616-17 was any freedom to return to Eng- 
land given to the Virginia colonists. Brown, II., 798. 

2 The charter of 1609, which gave the Company a more inde- 
pendent government, was of no advantage to the colonists, as 
the Governors appointed were given arbitrary powers. Col. Rec. 
of Va., 75, 76; Stith, 132, 147, 148; Arbor's Smith, cxxix., 
488; Force, III., 16. 



285] Servitude under the London Company. 27 

of service as those made by the Company/ This developed, 
as property began to be acquired by the planters generally, 
into the common mode of transporting servants on con- 
tracts by indenture for a limited time of service, varying in 
individual cases according to the terms of the contract/ 

In 1 619, under the new Governor of the Company, an 
important modification was introduced regarding its ser- 
vants in Virginia and colonists who should be afterwards 
transported at the common charge. The plan instituted by 
Dale of making a part of the colonists farmers or tenants at 
a fixed rent, and others servants on a large tract of land for 
the Company's use, had worked successfully in raising reve- 
nues for the government, and the Company now proposed, 
by an extension of this experiment, to relieve the colonists 
" forever of all taxes and public burthens,'' by setting apart 
large tracts of " publick land " to be worked by a system of 
tenantship-at-halves. Such a system had been commended 
to Governor Argall in 161 7, and orders had been issued 
setting apart various tracts of land, but the provisions were 
not carried out until the governorship of Yeardley, when 
tracts of three thousand acres were set apart in each of the 
four boroughs, and a special tract of like size was reserved 
for the Governor at Jamestown. These were for the general 

^Va. Co. Rec, II., 32, 41, 42, 196. 

' It is impossible to say just when the first actually " in- 
dented " servants were introduced into Virginia. They became 
a distinct class after 1619, and formal indentures were prob- 
ably in use that year applying to servants sent to the planters. 
The Assembly of 1619 provided that all contracts of servants 
should be recorded and enforced. Whether indentures had been 
used by the Company or private persons previous to this is not 
clear. They seem to have been applied to the Company's tenants 
after 1619. The manuscript records of the Company contain a ref- 
erence, under the date 1622, to a boy's indenture, and it is prob- 
able indentures were used in 1619. A registry was kept of per- 
sons transported in the Company's ships, but those sent otherwise 
by private persons were not included in it until 1622, when so 
much trouble had been occasioned by verbal contracts that the 
Company's bookkeeper was required henceforth to register all 
contracts for service. Col. Rec, 21, 28; Va. Co. Rec, II., 17, 23. 



28 White Servitude in the Colo7iy of Virginia. [286 

revenue of the government. Other tracts of half the size, 
called " borough lands," were given as common lands to 
each borough for the support of their " particular magistrates 
and officers and of all other charges." For endowing a 
'' university and college " ten thousand acres were allotted in 
the territory of Henrico.^ Men were to be placed on the 
land as tenants-at-halves on contract to remain there seven 
years, returning half the profits of their labor to the Com- 
pany and enjoying the other half themselves. They were 
apportioned as the revenues to be raised demanded, and in- 
creased from time to time. Within less than a year 500 
persons were sent on these terms.' Not only were the old 
public offices, such as the governor's and secretary's, to be 
thus supported by the allotment of a fixed number of ten- 
ants, which must be kept intact by successive incumbents, 
but whenever a new office was created or any project of 
public importance undertaken this became the common 
mode of insuring its support.^ 

By a special application of the English system of appren- 
ticeship, well established in England after the Statute of 
Apprentices of Elizabeth, 1563, which put a premium upon 
agricultural apprenticeship, an attempt was made to round 
out this tenantship and insure its perpetuity. One hundred 
poor boys and girls who were about to starve in the streets 
of London were sent in 1619, by the aid of the mayor and 
council of the city, to be bound to the tenants for a term of 
years, at the end of which they were to become themselves 

^ Instructions to Governor Yeardley, 1618; Va. Hist. Mag., Oct., 
1894, 155, 156, 158, 159; MS., Libr. of Supreme Court, Wash. Va. 
Rec, cap. 23, 221, p. 72. 

-Va. Co. Rec, I., 22, 26; Stith, 163, 165; Force, III., No. 5, 
10; lUd., 82; Collingwood MS., I., 30-35. 

^Va. Co. Rec, 45, 59, 111, 119, 130-137, 151, 152. Ibid., MS. 
Rec, III., 123, 161, 170. The office of the marshal, vice-admiral 
and treasurer, when created, were to be so supported; the "phys- 
ician general " had tenants, and the ministers also six apiece 
for their glebes. The support of the East India school, of the 
iron works and of a glass furnace was to be provided for on 
the same plan. 



287] Servitude under the London Company. 29 

tenants-at-haives on the public lands, with an allowance of 
stock and corn to begin with. Industrial apprenticeship was 
also provided for to encourage trade and to stop the exces- 
sive planting of tobacco. The term was usually limited to 
seven years, or in the case of girls, upon marriage or becom- 
ing of age. Apprentices soon began to be disposed of to the 
planters on their reimbursing the Company for the charges 
of their outfit and transportation, and the records in several 
cases suggest a suspicion of speculation."" 

The intent was probably to establish a kind of metayer 
system, though the tenant was at liberty at the expiration of 
his term to remove to " any other place at his owne will and 
pleasure." It was supposed that the terms were sufficiently 
advantageous to induce him to enter into further contracts 
for successive periods of seven years. The success of the 
earlier plan introduced by Dale led the Company to hope 
not only for the support of the government, but for large 
returns in excess, and the design was to make it a permanent 
and certain source of all the necessary revenues. It was 
frustrated, however, by the maladministration of the system 
on the part of the government and officers. The tenants 
were frequently seated on remote and barren lands, or de- 
frauded in their contracts, being taken from their places and 
hired by the year to planters, so that almost from the begin- 
ning the system was a failure, and instead of providing 
a revenue it was not even self-supporting. The public ten- 
ants were particularly neglected in favor of those belonging 
to the officers, and several propositions were made at diflfer- 



^Cal. S. P., Col. 19; Neill, London Co., 160, note, 161, 235; 
Cunningham, II., 42; Robinson MS., 68; MS. Rec. Va. Co., III., 
162; Va. Co. Rec, I., 25, 36, 39, 40-42, 91, 97, 100, 124, 140, 169. 

=^ Force, III., No. 5, 14, 15; Va. Co. Rec, I., 40-42; Hening, 
I., 230. Though the Company was forced by the city of London 
to grant exceptional terms to tenants who had been formerly 
apprentices, by assigning them at the expiration of their tenant- 
ship a land grant of twenty-five acres in fee, yet it stipulated 
for the privilege of re-engaging them for further terms if the 
tenant freely consented. 



30 White Servitude in the Colony of Virginia. [288 

ent times for a change in the terms of tenantship, but it was 
never effected. The system practically came to an end with 
the dissolution of the Company in 1624, but even as late as 
1642 some few tenants remained, showing that the Com- 
pany's plan of renewal of terms had been practiced.^ It had 
degenerated by this time into the payment of a fixed rent or 
into planting for the benefit of the owner.^ The growth 
of a class of strictly indented servants was also a factor in 
the failure of this tenantship. Servants were much less 
costly, and rapidly became more profitable.' Fifty servants 
were sent to serve the public in 161 9, and in the next year a 
hundred more, say the records, "to be disposed of among 
the old planters which they exceedingly desire and will pay 
the Company their charges with very great thanks."* These 
men had been selected with great care, but the Company was 
unfortunate in being forced by the repeated orders of King 
James to add a number of dissolute persons whom he was 
determined, by the exercise of mere prerogative, to remove 
from England as an undesirable class.° 

^ Va. Co. Rec, I., 117, 169, 173; Smith, II., 40, 106, 107; Va. 
Co. Rec. MS., III., 161, 163, 166, 170, July 5, 1621; Va. Hist. Reg., 
I., 159; Hen., I., 230; Appd. 8th Rept. Royal Com. on Hist. MSS., 
pts. II. & III., 39-44. Geo. Sandys, March 30, 1623, writes to 
his brother. Sir Samuel Sandys: "The tenants sent on that 
so absurd condition of halves were neither able to sustain 
themselves nor to discharge their moiety, and so dejected with 
their scarce provisions and finding nothing to answer their ex- 
pectations, that most of them gave themselves over and died 
of melancholy, the rest running so far in debt as left them still 
behind-hand and many (not seldom) losing their crops while 
they hunted for their belly." Cf. Nichols to Woreenholme, p. 41. 

== Robinson MS., 188. 

^Va. Co. Rec, I., 87; MS., Ibid., III., 171; Neill, London Co., 
230; Force, III., 14. The average cost of a tenant was 16, of a 
servant 6 pounds. 

* Va. Co. Rec, I., 67, 83. 

=^Stith, 165, 167, 368; Neill, London Co., 163; Va. Co. Rec, L, 
25, 26, 33, 34. The Company was ordered to send the " men 
prest" in Nov., 1619, but it postponed doing so for nearly two 
months, in the hope of being relieved of the necessity. The 



289] Servitude under the London Company, 31 

The new life which began in Virginia in the year 1619 
greatly encouraged industry and husbandry and led to a 
large increase of independent proprietaries in a few years. 
Special inducements were offered by large grants of land 
and exceptional privileges to associations of planters and 
adventurers for the establishing of separate plantations. 
Liberal grants were also made to tradesmen and to members 
of the Company in proportion to their shares. To encourage 
immigration additional grants were made to them for every 
person transported to the colony in the next seven years.^ 
A large number of servants and tenants was needed on these 
plantations, and for some time the importation by private 
persons was larger than that by the Company.^ In 161 9 the 
number of tenants and servants was sufficiently large to 
make necessary some regulation of the future conditions of 
their servitude by law. The first General Assembly of Vir- 
ginia held in that year gave legal sanction and recognition 
to the servitude by the passage of special enactments provid- 
ing for the recording and strict performance of all contracts 
between master and servant. The right of free marriage 
was limited in the case of female servants, and servants in 
general were prohibited from trade with the Indians. Cor- 
poral punishment was provided as a penalty in cases where 
a free man suffered fine unless the master remitted the fine, 
and a general discretionary power was given to the Gov- 
ernor and Council for regulation of other cases.^ 

importunity of the king, however, compelled it to yield. One 
hundred persons had been included in the first order, hut it 
is probable that only half of these were sent to Virginia, and 
they were allowed to be selected. The Somers Island Company 
probably yielded to the request of the Virginia Company and 
took the rest. CoUingwood MS., I., 47. 

^Va. Hist. Mag., 160, 162, 164 (Oct., 1894); Col. Rec. Va., 78, 
81; Va. Co. Rec, I., 39; II., 124, 128, 196. 

' IMd., I., 123, 137, 148, 153, 154, 161; II., 148, 150. In the four 
years 1619-23 forty-four patents were issued to as many dif- 
ferent people for the transportation of a hundred persons each 
to Virginia; in the twelve years preceding only six patents had 
been granted. 

"Col. Rec. Va., 1, 21, 24, 25, 28; Laws, 1619. 



32 White Servitude in the Colony of Virginia. [290 

The main principles on which the institution of servitude 
v/as based were by this time clearly developed, and its 
growth henceforth consisted in the gradual addition of inci- 
dents originating in customs peculiar to colonial conditions, 
which, recognized by judicial decisions, became fixed in 
local customary law, or by the enactment of special statutes 
w^ere established as a part of the statutory law. 



CHAPTER 11. 



In the policy of the London Company towards its colo- 
nists during the first twelve years we have seen the begin- 
ning and gradual development of an idea which, adopted 
and amplified by the later government of the Company and 
in the administration of Virginia as a Royal Colony, grew 
into the system here called Indented Servitude, which 
throughout the colonial period was widely extended in all 
the American colonies and became an important factor in 
their economic and social development. Gradually, and not 
always consciously, it was formed into a hard and fixed sys- 
tem, in some respects analogous to the later institution of 
slavery, from which, however, it was always broadly distin- 
guished both in social custom and in law. 

The servitude thus developed was limited and conditional. 
With respect to its origin it was of two kinds, resting on 
distinct principles: 

First. Voluntary Servitude, based on free contract with 
the London Company or with private persons for definite 
terms of service, in consideration of the servant's transpor- 
tation and maintenance during servitude. 

Second. Involuntary Servitude, where legal authority con- 
demned a person to a term of servitude judged necessary for 
his reformation or prevention from an idle course of life, or 
as a reprieve from other punishment for misdemeanors 
already committed. 

Though involuntary on the part of the servant, this kind 

^ The term Indented Servitude has been used as the one best 
characteristic of the system at large. Strictly indented ser- 
vants not only formed the largest class, but gave legal deflnite- 
ness to the system of white servitude. 



34 White Servitude in the Colony of Virginia. [292 

involved a contract between the authority imposing the sen- 
tence and the person that undertook the transportation of 
the offender/ and the master's right to service resting upon 
the terms of this contract made or assigned to him was prac- 
tically on the same footing as involuntary servitude. 

The great body of servants \yas comprised in the former 
class. They were free persons, largely from England, 
Wales, Scotland and Ireland, who wished to go to the colony 
as settlers to better their condition, but were too poor to bear 
the charges of their transportation.'^ They consequently en- 
tered into a voluntary contract with any one that would 
assume these charges and their maintenance for such a term 
of years as would repay the outlay, placing themselves for 
this limited time at the disposal of the person for any reas- 
onable service. The contract was made in Great Britain 
with resident planters or the agents of colonists, but more 
frequently with shipmasters who traded in Virginia and dis- 
posed of the servant on their arrival as they saw fit. The 
agreement was by deed indented, and hence arose the term 
" Indented " Servants.' This class of so-called " Kids " was 

^ The right to the stipulated term of servitude was given to 
any one that would contract for the servant's transportation, and 
he seems to have had free disposal of this right when he reached 
Virginia. Va. Co. Rec, I., 91; II., 10, 11; Eng. Statutes at Large, 
4 Geo., c. II.; Anson, 7, 43. This was probably in England a 
Contract of Record. 

2 Jefferson's Works, IX., 254 sq.; Jones, Present State, 53, 54. 

^ Neill, Va. Carolorum, 57, note. An indenture of 1628, made 
after assignments of contracts were recognized in Virginia, 
may be taken as typical of those generally in use. A husband- 
man of Surrey County, England, contracts and binds himself 
to a citizen and ironmonger of London " to continue the Obedient 
Servant of him, the said Edward hurd his heirs and assignes 
and so by him or them sente transported unto the countrey and 
land of Virginia in the parts beyond the seas to be by him or 
them employde upon his plantation there for and during the 
space of ffour yeares— and will be tractable and obedient 
and a good and faithful servant onyst to be in all such things as 
shall be Commanded him— In consideration whereof the said 
Edward hurd doth covenant that he will transporte and 
furnishe to the said Logwood to and for Virginia aforesaid— 
and allowe unto him sustenance meat and drink apparel and 
other necessaryes for his livelyhocd and sustenance during the 
said service "—sealed and delivered in the presence of two 
servants. 



293] Indented Servitude. 35 

supplemented by a smaller class of persons who went on 
agreements for fixed wages for a definite time. 

The other large class was supplied chiefly from English 
paupers, vagrants and dissolute persons sent under the arbi- 
trary exercise of royal prerogative or by court sentences, 
and later by the action of English penal statutes. In the 
earlier years it included a large number of poor children 
from the counties and towns of England, who were sent to 
apprenticeship on easy conditions.^ The penal regulations 
of the colony up to the year 1642 tended also to recruit this 
class." A very large number of the convicts sent to the 
American plantations were political and not social criminals. 
Of the Scotch prisoners taken at the battle of Worcester six- 
teen hundred and ten were sent to Virginia in 1651. Two 
years later a hundred Irish Tories were sent, and in 1685 a 
number of the followers of Monmouth that had escaped the 
cruelties of Jeffreys. Many of the Scotch prisoners of Dun- 
bar and of the rebels of 1666 were sent to New England* 
and the other plantations. As early as 161 1 Governor Dale, 
anxious to fill out the number of two thousand men for es- 
tablishing military posts along James river, had recom- 
mended that all convicts from the common jails be kept up 
for three years. They " are not always," he said, " the worst 
kind of men, either for birth, spirit, or body and would be 
glad to escape a just sentence and make this their new coun- 
try, and plant therein with all diligence, cheerfulness and 
comfort." This request passed unheeded, and the earliest 

^ Gal. State Papers, Domestic, 584; Stith, 168. Blackstone, I., 
137, note; IV., 401 aad note; Reeves, 598. 

^The servitude for offenses, early instituted by the governors 
and continued by the courts, can hardly be regarded as 
properly a part of the system, however. It was strict penal 
servitude in the interest of the commonweal. These convicts 
were not held by the colonists, but employed on public works 
as servants of the colony, or in service to the Governor in his 
official capacity, except in specific cases. Robinson MS., II., 12, 
13, 65; Va. Co. MS. Rec, III., 215, 224. Of. Hening, I., 351; II., 
119, 441; III., 277. 

« Mass. Hist. Coll., Vol. IX., 2, Dale to Salisbury. 



36 White Servitude in the Colony of Virginia. [294 

introduction of any of the criminal class seems to have been 
in 1618, when a man convicted of manslaughter and sen- 
tenced to be hanged was reprieved, "because he was a car- 
penter and the plantation needed carpenters."^ In the early 
years of the seventeenth century England suffered, particu- 
larly in her border counties, from a number of malefactors 
whom it was impossible to bring to justice. Magistrates 
and most of the gentlemen of the counties countenanced 
them, and even had them in their employ for private ends. 
Many schemes were proposed to the king for remedying the 
evil and compelling the justices and officers to perform their 
duty. Transportation had been made use of before, and the 
king now proposed to send the offenders to Virginia.^ 
From 1 61 8 to 1622 a number came, but the large increase 
was in the latter half of the century. In 1653 an order of 
the Council of State appointed a committee concerning the 
transportation of vagrants to the foreign plantations. In 
1 66 1 another committee was appointed to further the send- 
ing of people, and power was given to Justices of the Peace 
to transport felons, beggars and disorderly persons.^ 

Sufficient numbers had been sent under this power, and by 
the transportation of political offenders, to furnish ring- 
leaders for an attempt to subvert the government in 1663. 
In consequence of this and the danger of the continued im- 
portation of " great numbers " of these " wicked villaines," 
the General Court, upon the petition of the counties of Glou- 
cester and Middlesex, issued an order prohibiting any fur- 
ther importation of them after the twentieth of January, 
1671.^ Through the influence of Lord Arlington this order 

^ lUd., 1-4:; Middlesex Rec, II., 224. Others were granted re- 
prieves earlier on condition of transportation, but it is probable 
that they went elsewhere than Virginia. Sir Thomas Smith 
was Governor of the East India Company at this time. 

2 Surtees Soc, Vol. 68, 419, 420, Appd.; Bacon, Essay on Plan- 
tations. 

^'Cal. State Papers, Col. 28, 441; cf. Ashley, Economic Hist. 
Eng., 366. 

* Rec. Genl. Ct., 1670-2, 5, 52; Hening, II., 191; Rob. MS., 8, 67, 
257, 261. 



295] Indented Servitude. 37 

was confirmed in England and was made to apply to the 
other American colonies as well as to Virginia/ A strict 
system of search was applied to every ship that entered Vir- 
ginia ports, and for the next half-century the colony had a 
respite from this class of *' Newgaters " and " Jail Birds."^ 
Their transportation was now diverted to the West Indies, 
but this proved so ineffectual in putting a stop to petty felo- 
nies that in the 4th year of George I. (171 7) Parliament 
passed a statute over the most vigorous protests from the 
Virginia merchants in London, making the American colo- 
nies practically a reformatory and a dumping-ground for the 
felons of England/ In 1766 the benefits of this act were 
extended to include Scotland, though Benjamin Franklin, 
on the part of Pennsylvania, memorialized Parliament 
against it, and in 1768 the more speedy transportation of 
felons was ordered.* The practice was only stopped by the 
War of the Revolution. The preamble of the act of 1779 
significantly remarks that "whereas the transportation of 
felons to His Majesty's American Colonies is attended with 
many difficulties," they are now to be sent to "other parts 
beyond the sea, whether situate in America or not."' They 
were finally disposed of in convict galleys or sent to the new 
penal colonies in New South Wales or at Botany Bay.® 

Virginia, contrary to some of the colonies, never favored 
the importation of this class. They were seldom reformed, 
and their " room " was held much more desirable than their 
" company," says Jones.^ Many attempts were made to pre- 

^ Cal. State Papers, 242; Rec. Genl. Ct., 52. 

^Rec. Genl. Ct, Apl. 6, 1672, 52. 

^ Geo. I., c. 11, Statutes at Large; Va. MSS. fr. B. R. O., Vol. 
II., pt. 2, p. 579. 

*6 Geo. III., c. 32; Ford, Works of Franklin, Vol. X., 120; 
8 Geo. III., c. 15. 

^8 Geo. III., c. 74. 

^Lecky, England in the Eighteenth Century, VI., 254. 

'Jones, Present State, 53, 54; Beverley, 233; " Va. Verges," 
1622. 



38 White Servitude in the Colony of Virginia. [296 

vent their coming by the imposition of heavy duties, but 
they were not finally and effectually prohibited until 1788/ 
The ability given the States to lay a tax of $10 on all persons 
imported was incorporated into the Constitution of the 
United States, mainly through the efforts of George Mason 
of Virginia, and was partly designed to keep out convicts.^ 
From this attitude of the colony it probably received a much 
smaller number than some of the other colonies.^ 

Another important source of involuntary servitude was 
found in the practice of " spiriting," which grew up in the 
reign of Charles I. and continued throughout the Common- 
wealth period and the reign of Charles 11. It was an organ- 
ized system of kidnapping persons, young and old, usually 
cf the laboring classes, and transporting them to the planta- 
tions to be sold for the benefit of the kidnapper or ship- 
master to whom they were assigned/ It became widely 
extended in England, but Bristol and London were the cen- 
ters of the traffic. Throughout London and the parishes of 
Middlesex county its agents, called " spirits," were distrib- 
uted ; men and women, yeomen, tradesmen, doctors and a 
class of rogues and idlers who earned a livelihood by this 
means.^ The ladies of the court, and even the mayor of 

^Va. MSS. fr. B. R. O., 1697, p. 320; 1723, 1729, March 26; 
Hening, XII., 668. Cf. III., 251; V., 24, 546. 

^ Madison Papers, Vol. III., 1430; Article I., sec. 9, Constitu- 
tion of U. S. 

^ Lodge, Colonies, 242; Lecky, VI., 254 sq. Franklin's Works, 
X., 119. 

* Middlesex Records, III., 38, 94, 245. The offense, when dis- 
covered, which was probably not true of one in twenty cases, 
was treated with remarkable leniency by the courts. Under 
the Civil Law it would have been punished with death, but we 
meet with petty fines of a few shillings, even when the " spirit " 
confessed the crime, and in one case only 12d.; a few hours in 
the pillory, or imprisonment till the fine was paid seems to 
have been considered by the judges a sufficient atonement. The 
Session Rolls of Middlesex show that a large number of the cases 
were not even brought to trial, though true bills had been 
brought against the offenders. 

'^ Middlesex Rec, II., 306, 326, 335, 336; III., 100, 184, 229, 
253, 257, 259, 271, 326, &c.; IV., 40, 70-87, 245; Cal. State Papers, 
Col. 411. 



297] Indented Servitude. 39 

Bristol, were not beneath the suspicion of profiting by this 
lucrative business. All manner of pretenses were used to 
decoy the victims aboard ships lying in the Thames or to 
places where they could be assaulted and forcibly conveyed 
on board, to be disposed of to the ship's company or to 
merchants."^ 

The practice first arose in connection with the West In- 
dia plantations. Barbadoes and other island plantations 
probably received a much greater number than the Ameri- 
can colonies.^ We find a case belonging to Virginia as 
early as 1644.' ^^ 1664 the abuse had grown so bad that 
tumults were frequently raised in the streets of London. It 
was only necessary to point the finger at a woman and call 
her a " common spirit " to raise a " ryot " against her. The 
Lord Mayor and aldermen of London, and a number of 
merchants, planters and shipmasters, sent petitions urging 
the estabHshment of a registry ofifice to put an end to the 
practice.* The office was established in September of that 
year, and was to register all covenants and issue certificates 
to the merchants.^ The penalty for not registering any per- 
son who was to be transported as a servant was i20, and the 
consent of friends or relatives in person at the office was 
necessary for the transportation of any one under twelve 
years of age, and good reasons had to be shown for such 
transportation. Even these strict regulations failed to stop 
the practice, and in 1670 it was necessary to resort to Parlia- 
ment to prevent the abuse by imposing as a penalty death 
without benefit of clergy.® 



' lUd., 449; Va. MS. fr. B. R. O., 1640-91, 170. 

^Middlesex Rec, Vol. III., 276; IV., 65, 69-73, 78, 79, 155, 196, 
245. 

^Va. MSS. fr. the British Record Office, Vol. L, 46. Gf. State 
Papers (Calendar), 411, 457. 

*Oal. State Papers, Col. 220; Middlesex Rec, IV., 181. 

■Cal. State Papers, Col. 221, 232. The office had been pro- 
posed in 1660. 

^'This and the lessened demand for servants was sufficient 
to put an end to the abuse. 



40 White Servitude in the Colony of Virginia. [298 

Further technical distinctions arose in law determined by 
the title under which servitude was due. Thus, w^here 
verbal contracts alone existed, or where it was specially 
stipulated for, "Servitude according to the Custom" took 
place, and the servant was held for the customary term, 
whatever it might be, unless a contract was proved. After 
the statute of 1643, which set a definite term for all servants 
brought in without indentures, this became known as servi- 
tude by act of Assembly. Spirited servants, as a rule, came 
under this act. The servitude of felons and convicts, after 
the penal statutes, was known as servitude by act of Parlia- 
ment, and that of offenders sentenced in Virginia as servi- 
tude by order of court. These distinctions were of little 
practical importance, however, as all servants except con- 
victs met with the same treatment both in social custom and 
in law. 

The servants in Virginia were usually English, Scotch or 
Irish, but there were also a few Dutch, French, Portuguese 
and Polish.^ They were usually transported persons, but 



^ Jones, 54; Robinson MS., II., 255; Howe, Va., 207. Before 
the statute of 1661, which made negroes generally slaves, a 
number were held as servants for a term, and even afterward 
a few seem to have remained servants. Robinson MS., 10, 30, 
250, 256; MS. Rec. Va. Co., III., 292; MS. Ree. Genl. Ct, 161, 218; 
1673, 1675. From 1656^1676 and after 1691, Indian children 
sold by their parents, and captives, could legally be held only as 
servants; but the disposition was, when not restrained by law, 
to make them slaves. Acts of 1676 and 1682 legalized Indian 
slavery, but it was prohibited in 1670, and finally in 1691 by an 
act for free trade with all Indians, which the General Court 
construed as taking away all right to their slavery. Many were, 
however, unjustly reduced to slavery up to 1705, as the act 
was supposed to date from the revisal of 1705, and not from 
1691. Hening, I., 396; II., 15, 143, 155, 283, 491, 562; III., 69 
and note. Robinson MS., 256, 261, 262; MS. Rec. Genl. Ct, 29, 
218. {Vid. Jeff. Cases in Genl. Court, p. 123; Robin et al. vs. 
Hardaway, 1772.) Mulatto bastards were also made servants; 
but the number from these sources was comparatively so in- 
significant that a consideration of them may be omitted. A 
proposition was even entertained of making servants of the 
women sent over for wives, whether they married or not. 



299] • Indented Servitude, . 41 

residents in the colony also sold themselves into servitude 
for various reasons. The demand for servants before the 
rise of slavery was always very great in the American colo- 
nies and was further enhanced by that of the island planta- 
tions. It was the impossibility of supplying this by the 
regular means that furnished the justification professed in 
the English penal statutes^ and gave encouragement to the 
illicit practice of spiriting. In the early years before these 
means were resorted to, dealing in servants had become a 
very profitable business. The London merchants were not 
slow to see the advantages of such a trade; a servant might 
be transported at a cost of from £6 to £8 and sold for £40 or 
£60, and a systematic speculation in servants was begun 
both in England and in Virginia.^ Regular agencies were 
established, and servants might be had by any one who 
wished to import them " at a day's warning."^ Others were 
consigned to merchants in Virginia or sent with shiploads 
of goods on a venture.* The demand continued unabated 
till near the last quarter of the seventeenth century. The 
numbers were so considerable in 165 1 that the Commis- 
sioners of the Commonwealth who were sent to demand the 
submission of Virginia were authorized, in case of resist- 
ance, to levy the servants for reducing the colony.^ From 
this time to the beginning of the decline of the system the 
yearly importations were very large, the number imported 
from 1664 to 1 67 1 averaging 1500 a year. 

^Hening, III., 449; 4 Geo., c. 11, etc. 

2 Append, to W.ghth Eept., etc., 41; Cal. State Papers, Ool. 36, 
76, 77, 100; Smith, II., 105; Purchas, His Pilgrimage, p. 1787. 

® Verney Papers, Camden Soc. Pub. ; Neill, Virginia Carl. 109. 

*Cal. State Papers, Col. 36, 258, 268. 

^ " New Description of Virginia," London, 1649; Thurloe State 
Papers, Vol. I., 198. The general muster of 1624 shows the 
number of servants then in Virginia as 378 in a population of 
2500. They were well distributed, most of the planters having 
but one or two. Afterwards many planters brought in as many 
as 30, and in 1671 the servants were 6000, 15 per cent, of the 
population. Hening, II., 515. 



I 



42 White Servitude in the Colony of Virginia. [300 

Several causes combined to fasten the system very early 
rpon Virginia: the stimulus given to the acquisition of 
V'-ealth resulting from the establishment of private property 
in land;^ the phenomenally rapid growth of tobacco culture, 
occasioned by the productiveness of labor employed in it, 
and the returns to be had in ready money from its sale;"* the 
increasing cost of hired labor ; the " head right " of fifty 
acres which was received for every person transported;^ but 
particularly the unfortunate condition of the laboring classes 
in England, whose real wages (owing to the great rise in 
prices in the latter part of the sixteenth century) were ex- 
ceedingly low and gave rise to a large class of unemployed.* 

Legal Status of the Servant. — The history of the legal 
development of the institution properly begins with 1619 
and falls broadly into three general periods: 

First, 1 61 9-1 642, characterized by the development of cer- 
tain incidents of servitude from practices originating in the 
first twelve years of the Company's government. These 
gradually become fixed during this period chiefly in Custo- 
mary Law. 

Second, 1642- 1726, in which the incidents of the former 
period are extended and further established by Statute Law, 

^ Col. Rec. Va., Declaration, etc. The ancient planters regarded 
the massacre of 1622 as a judgment on their greed. 

2 The tobacco culture was introduced into Virginia by Gov- 
ernor Yeardley in 1616, and even in this year restrictions had 
to be imposed to prevent the planters from altogether neglect- 
ing corn. In 1619, Secretary John Pory tells us that their. 
" riches consist in Tobacco," and their " principall wealth " in 
servants, " but they are chargeable," he says, " to be furnished 
with armes, apparel and bedding and for their transportation 
and casuall both at sea and for their first yeare commonly at 
lande also, but if they escape they prove very hardy and 
sound able men." Purchas, His Pilgrimage, 837, Rolf's Rela- 
tion; Campbell, 117; Pory to Carleton, Mass. Hist. Soc, IX., 4th, 
9, 10. 

« Smith, 165; Mass. Hist. Coll., Vol. IX., 4th sec, p. 10, note. 
See Pory to Carleton; Va. Co. of London, Va. Hist. Coll., Vol. 
VII.; Vol. I., 14, 15. 

* Cunningham, 201, 422. Purchas, His Pilgrimage, p. 1821. 



301] Indented Servitude. 43 

and the system reduced to legal uniformity in contrast to the 
somewhat varying practices of the courts in the former 
period. The institution reaches also in this period its high- 
est practical development. 

Third, 1 726-1 788, the period of decline of the system in 
consequence of the rising institution of negro slavery. 

First Period, 1619-1642. — ^After the Assembly of 1619, 
until near the middle of the century, very little direct legis- 
lation appears in regard to servants, but in this interim there 
grew up many customs recognized by the tribunals which 
affected very seriously the personal rights of servants. One 
of the earliest and most important customs was the right 
assumed by the master to assign his servant's contract 
whether he gave his consent or not. This originated in the 
practice with the Company of disposing of apprentices and 
servants to planters on their agreeing to reimburse the Com- 
pany for the expenses of the servant's transportation, and in 
the custom with officers of the government of renting their 
tenants and apprentices to planters in order to insure an 
easier or more certain support. The depressed condition 
of the colony following the Indian massacre of 1622 
nmde the sale of servants a very common practice among 
both officers and planters.^ In 1623 George Sandys, the 
treasurer of Virginia, was forced to sell the only remaining 
eleven servants of the Company for mere lack of provisions 
to support them, and a planter sold the seven men on his 
plantation for a hundred and fifty pounds of tobacco. The 
practice was loudly condemned in England and bitterly re- 
sented on the part of servants, but the planters found their 
justification in the exigencies of the occasion, and their legal 
right to make the sale seems never to have been actually 
called into question.'' Assignments of contracts for the 

^Neill, London Co., 356, 375; Append., 8th Kept. Com. on Hist. 
MSS., 6, 39; Cal. S. P., Col. 36. 

^ App. 8th Rep., I. and III., 39, 41-44; Smith, Hist., II., 40; Va. 
Hist. Mag., Oct., 1893, 162. The servants wrote indignant let- 
ters to their friends. One says he was " sold like a d 



44 White Servitude in the Colony of Virginia. [302 

whole or the unexpired portion of the servant's term became 
from this time forward very common. As a result the idea 
of the contract and of the legal personality of the servant 
was gradually lost sight of in the disposition to regard him 
as a chattel and a part of the personal estate of his master, 
which might be treated and disposed of very much in the 
same way as the rest of the estate. He became thus rated 
in inventories of estates, and was disposed of both by will 
and by deed along with the rest of the property ."^ 

But aside from these incidents of property which attached 
to the condition of the servant, his position before the law 
was very little different from that of the freemen of the col- 
ony. His personality was recognized by the enactment of 
special laws for his protection and in his being subjected, 
with the rest of the colonists, to the payment of a: poll tax for 
the support of the government and of tithes to the minister. 
In the early period, like a freeman, he was liable to mihtary 
service in behalf of the state. He enjoyed rights of trade, 
except with the Indians, and could acquire property. His 
testimony was always received in court, unless he was a con- 
vict, and he was a valid witness to contracts."" His religious 
instruction was provided for in the same manner as that of 
freemen. The courts carefully guarded his contract and 
eftected speedy redress of his grievances. He might sue and 
be sued, and had the right of appeal to the supreme judiciary 
of the colony, and throughout this period he enjoyed the 
important political right of the suffrage on an equality with 
freemen, a right which in most cases had not been exer- 

slave," but admits that his master's whole household " was 
like to be starved." Rolf says the " buying and selling of men 
and boies or to be set over from one to another for a yearly 
rent or that the tenants or lawful servants should be abridged 
their contracts " was held " a thing most intolerable in Eng- 
land." 

^Accomac Rec. MS., 61, 82 (1635); Robinson MS., 9; York Co. 
Rec, 86. 
2 Hening, I., 123, 143, 144, 157, 196. 



1 



303] Indented Servitude. 45 

cised before/ In penal legislation, however, the distinction 
was generally made between the servant and the freeman in 
the servant's liability to corporal punishment for of- 
fenses for which a freeman was punished by fine or impris- 
onment. A law of 1 619 provided that " if a servant wilfully 
neglect his master's commands he shall suffer bodily 
punishment,'' but the right of the master to regulate his 
servant's conduct in this way was of slow growth and 
had no legislative sanction before 1662. During this 
period correction remained in the hands of the Assembly 
and of the courts." 

When Wyatt came as Governor in 1621 he was instructed 
to see that all servants fared alike in the colony and that pun- 
ishment for their offenses should be service to the colony in 
public works, and by a law of 1619 servitude for wages was 
provided as a penalty for all " idlers and renegates."^ That 
such provisions should be realized it was necessary for the 
servant to perform service in addition to the term of his con- 
tract. In this we have the germ of additions of time, a prac- 
tice which later became the occasion of a very serious abuse 
of the servant's rights by the addition of terms altogether 
incommensurate with the ofifenses for which they were im- 
posed. It became a means with the courts of enforcing 
specific performance of the servant's contract, and was so 
applied contrary to the common law doctrine relating to 
contracts, which only provided for damages in cases of 
breach of contract and not for specific performance.'' 

The common law of England had the character of national 
law in the colony, and accompanied the colonists as a per- 
sonal law having territorial extent. Although the relation 
of master and servant in the case of apprenticeship as an ex- 
tension of the relation of parent and child, guardian and 
ward, was an effect of the common law having personal 

^lUd., 150, 157, 330, 333, 334, 403, 411, 412 (also 217); Ace. 
Rec. MS., 2, 24, 54, 76, 84; Col. Rec. Va. Laws, 1619. 
^Col. Rec. Va., 1619, 25, 28; Hening, I., 127, 130, 192. 
^ Col. Rec. Va., 12 et seq.; Hening, I., 117. 
* Robinson MS., 52. 



46 White Servitude in the Colony of Virginia, [304 

extent, yet the relation of master and servant in indented ser- 
vitude was unknown to that law, and could neither be de- 
rived from nor regulated by its principles. It had to depend 
entirely for its sanction on special local statutes, or on the 
action of tribunals which had no precedents before them and 
acted as the necessities of the occasion demanded, with little 
regard to established doctrines of the common law. The 
growth of the institution is thus marked by the develop- 
ment of local customary and statute law, and only very grad- 
ually assumed a fixed shape as this development proceeded.^ 

The master's title to service rested on the provisions of 
the contract. These were very varied, sometimes specifying, 
besides the ordinary conditions, treatment of a special nature, 
sometimes stipulating for a trusteeship of such property as 
the servant possessed, and sometimes for gifts of land or of 
apparel and corn sufficient to set the servant up as a freeman 
when his term had expired.^ Such provisions were recog- 
nized by the courts in their strict enforcement of the con- 
tract, and led to the establishment of customary rights such 
as additions of time and freedom dues. A servant might 
claim on the expiration of his term freedom dues in apparel 
and corn whether stipulated for or not. Their amount was 
at first customary and determined where sued for by ap- 
pointees of the court, but finally they became fixed in statu- 
tory law.'' 

Monthly courts were held as early as 1622, and by virtue 
of their general jurisdiction over all cases not involving more 
than a hundred pounds of tobacco (which was later extended 
to £5 and iio causes and to those of less than 1600 pounds 
of tobacco) they had jurisdiction over disputes between mas- 
ter and servant within this limit, and the Commissioners as 
conservators of the peace had power to regulate the conduct 

^Hurd, Law of Freedom and Bondage, I., 116, 129, 139, 210, 
220; Reeves, Eng. Law, II., 598; Anson, Law of Contract, 213 sq. 

^'Acc. Eec. MS., 88 (1637); Essex Rec. MS., 140 (1686). 

^Hening, I., 303, 319, 346; II., 66, 70. Rob. MS., 8; Ace. Rec. 
I., 10, 272, 273, 519; IL, 58, 68; MS. Rec. Genl. Ct., 158; Col. Rec. 
Va., 81. 



305] Indented Servitude, 47 

of the servant whenever necessary. Before this the Gov- 
ernor and Council or the General Assembly had had sole 
jurisdiction of all causes. After quarter courts were estab- 
lished in 1632 appeals lay to it, as before to the Governor 
and Council, and to the Assembly as the supreme appellate 
court in the colony. The servant by his right of suit in these 
courts and of appeal had a speedy and effective remedy for 
his grievances, and the rulings of the justices established 
many precedents which greatly mitigated the conditions of 
his servitude.^ The judges when they were acquainted with 
the English law at all put a most liberal construction upon it 
and generally in favor of the servant. In breaches of con- 
tract discharge was often granted for insufficient reasons, and 
for misusage or non-fulfilment of any of the conditions by 
the master, the servant, if he did not obtain his freedom, 
might have his term lessened and be granted damages. The 
courts also often enjoined such action on the part of the 
master as would repair the injuries sustained by the servant. 
In 1640 a master who had bought a maid-servant, "with 
intent to marry her," was ordered by the General Court to 
do so within ten days or to free her on the payment of 50a 
lbs. of tobacco. And where insufficient food and clothing 

^ In 1643 the ten monthly courts were reduced to six County- 
Courts, with jurisdiction over cases above 20 shillings, or 200 
lbs. of tobacco. Cases of less amount could be decided in the dis- 
cretion of any commissioner. The inconvenience of resorting to 
the general court at Jamestown caused a grant in 1645 of general 
jurisdiction of all cases in law and equity to the county courts. 
Two years later the jurisdiction of the General Court was limited 
to cases of 1600 lbs. of tobacco in value or over. In 1662 there 
were 17 county courts having jurisdiction in all cases " of what 
value or nature whatsoever not touching life or member," and the 
name Commissioner was changed to Justice of the Peace. The 
Quarter Courts now became the General Court, held twice a 
year, and appeals lay to it as formerly, and from it to the 
Assembly. In 1659 appeal to the Assembly had been limited 
to cases involving more than 2500 lbs. of tobacco. This limita- 
tion was removed in 1661, and justice facilitated by a reference 
of all cases except those of the winter term to itinerant chan- 
cellors. 



48 White Servitude in the Colony of Virginia. [306 ■ 

were provided servants were taken away until the master \ 

corrected the fault." When the record of his contract was i 

not sufficient to protect the servant on the expiration of his | 

term from the greed of his master, he might make it appear | 

upon testimony in the County Court that the conditions of ; 

the contract had been fulfilled and receive a certificate of the ; 

fact, which thus became indisputable evidence of his right j 

to freedom. The courts also recognized the servant's right - 

to acquire and hold property.'' ^ 

In the practices of the courts regulating the punishment ] 

of servants we see the way prepared for later provisions of ! 

the statute law not so favorable to them. By virtue of the ' 

power of the courts to regulate the private as well as the j 

public conduct of servants, and by the discretionary power i 

given by enactments to the Governor and Council, they i 

might be subjected to indignities of punishment not worthy j 

of a freeman. In but few^ cases did the courts permit servants' j 

offenses to be punished by fine; the usual penalty was whip- j 

ping or additional servitude to the master or to the colony, j 

This probably would not have been the case if the servant j 

had generally had anything wherewith to discharge a fine, ! 

but as he had not, some other means of satisfaction was ; 

found necessary. Penal legislation regarding servants did \ 

not differ greatly in severity, however, from that applied to \ 

freemen, except in the case of absconding servants, where > 

very severe punishment was early inflicted, designed by its \ 

severity to prevent recurrence of the offense.^ Towards the j 

iRob. MS., 8, 9, 27, 68, 243 sq.; Ace. Rec, 2, 39, 44, 58, 76, 35.' ) 

45, 85, 86, 91, 82. In 1637 a bad character, John Leech, threat- | 

ened to have his master " up to James City to see if he could not , 

get free of a year's service," alleging " that his master had not "I 

used him so well as he formerly had done," and that he would ! 

use against him speeches made by the master against the Gover- j 

nor and Council. | 

2 Rob. MS., 8, 9, 68; Ace. Rec, 35, 76, 82. I 

=^ Robinson MS., 9-13, 27, 66, 69; Ace. Rec, 107. A number of \ 
servants, for a conspiracy " to run out of the colony and en- 
ticing divers others to be actors in the same conspiracy," were 



307] Indented Servitude. 49 

end of the period the servant's great abuse of his rights of 
trade, by allowing himself to be tempted by loose persons to 
embezzle and sell his master's goods, made necessary some 
restriction. The Assembly of 1639 conditioned this right 
henceforth on the master's consent, imposing severe penal- 
ties upon persons who should induce any servant to trade 
secretly, and the courts seem to have rigidly enforced the 
provisions of this act.^ 

Before the close of the first half of the century, then, we 
have seen the growth, mainly through judicial decisions, of 
certain customary rights on the part both of the servant and 
of the master as recognized incidents of the condition of ser- 
vitude. These were on the part of the servant the right to a 
certificate of freedom, to freedom dues and to the posses- 
sion of property; on the part of the master, to the free 
assignment of the servant's contract by deed or will, to 
additions of time in lieu of damages for breach of contract, 
and the right of forbidding the servant to engage in trade. 
Corporal punishment and additions of time have also be- 
come the ordinary modes of regulating the servant's con- 
duct and punishing his offenses. 

Second Period , 1642- 1726. — From the year 1642 the 
statute books begin to fill with legislation concerning ser- 
vants, mainly confirming or modifying such rights as had 
been already developed and subjecting the system of servi- 
tude to more uniform regulation. Until 1643 ^^ definite 
term had been fixed by law for the duration of servitude 
when not expressed in indentures. The terms specified 
in the indentures varied from two to eight years, the usual 

to be severely whipped and to serve the colony for a period 
of seven years in irons. This was in 1640. " Saml. Powell for 
purloining a pair of breeches and other things from the house 
of Capt. Jno. Howe deed, shall pay ffower dayes work to Elias 
Taylor with all charges of the court and the sheriff's ffees and 
to sit in the stockes on the next Sabbath day with a ribell in 
his hatt from the beginning of morninge prayer until the end 
of the sermon with a pair of breeches about his neck." 
^Hening, I., 275, 445; Robinson MS., 10, 17 (1640). 



50 White Servitude in the Colony of Virginia. [308 

one being from four to five years, but until this time custom 
had regulated the servitude of such persons as came 
in without indentures, and what was known as servitude 
" according to the custom of the country " had begun to 
grow up. Where no contract but a verbal one existed 
there was always room for controversy between master 
and servant, each trying to prove an agreement that 
would be to his advantage. To put a stop to such 
controversies the Assembly passed a law definitely fix- 
ing the term in all cases where servants were imported 
" having no indentures or covenants," according to the age 
of the servant. The master was at first the judge of the ser- 
vant's age, but as this naturally worked to the servant's dis- 
advantage, the judgment of ages was put in the hands of the 
county courts after 1657. Unless the master produced his 
servant in court for this purpose within four months after 
arrival he could only claim the least term allowed by the law, 
and after 1705 the servant had two months allowed in which 
to prove an alleged indenture for a less time.^ 

By the beginning of the period several abuses had grown 
up that prevented or seriously interfered with the master's 
realization of his right to service. Hitherto there had been 
no legal restriction to prevent a man-servant from marrying, 
though by an act of 161 9 a female servant could not marry 
without the consent either of her parents or of her master, 
or of both the magistrate and minister of the place, upon 
pain of severe censure by the Governor and Council. The 
right of free marriage was one which for very obvious reas- 
ons would work to the disadvantage and inconvenience of 
the master, particularly if the marriage was made without his 
knowledge, and in 1643 a law was passed providing "that 
what man servant soever hath since January 1640 or here- 
after shall secretly marry with any maid or woman servant 
without the consent of her master he or they so offending 
shall in the first place serve out his or their tyme or tymes 

^Hening, I., 257, 411, 441; II., 169, 297, 447. 



309] Indented Servitude. 51 

with his or their masters — and after serve his master one 
complete year more for such offence committed/' and the 
maid " shall for her offence double the tyme of service with 
her master or mistress." When the offender was a free man 
he had to pay double the value of the maid's service to her 
master and a fine of 500 lbs. of tobacco to the parish. For 
the offense of fornication with a maid-servant the guilty 
man was required to give her master a year's service for the 
loss of her time, or, if a freeman, he might make a money 
satisfaction. In 1662 the master's losses from neglect of 
work or stolen goods and provisions were sufficient to make 
necessary a further restriction upon the secret marriage of 
servants. The act provided that "noe minister either pub- 
lish the banns or celebrate the contract of marriage between 
any servants unless he have from both their masters a cer- 
tificate that it is done with their consent," under penalty 
of the heavy fine of ten thousand pounds of tobacco. Ser- 
vants, whether male or female, guilty of marriage contrary 
to the act, with each other or with free persons, suffered the 
addition of a year's time to their servitude, and the guilty 
free person was condemned to a like term of service or the 
payment of 1500 lbs. of tobacco to the master ."^ 

Another great abuse was the practice which greedy and 
wealthy planters had of covenanting with runaway servants 
as hirelings or sharers on remote plantations, thus encourag- 
ing them by more favorable terms to desert their proper ser- 
vice. This had been anticipated by an enactment of the 
Assembly of 161 9, which provided " that no crafty or advan- 
tageous be suffered to be put in practice for inticing away 
tenants or servants of any particular plantation from the 
place where they are seated," and that it should be the " duty 
of the Governor and Counsell of Estate most severely to 
punish both the seducers and the seduced and to return 
them to their former places." But by 1643 the practice on 
the part of these planters had become so flagrant that com- 

^ Col. Rec. Va., 28; Hening, I., 253, 438; II., 114; III., 444. 



52 White Servitude in the Colony of Virginia. [310 

plaints of it were made at every quarter court, and the As- 
sembly enacted that any person so contracting with a ser- 
vant and entertaining him for a whole year, without a cer- 
tificate of the freedom of the servant from the commander or 
commissioner of the place, should forfeit to the master 
twenty pounds of tobacco for every night the servant was 
entertained, while the servant was to be punished at the dis- 
cretion of the Governor and Council/ 

But more than anything else the habit on the part of ser- 
vants themselves of absconding from their masters' service, 
stealing their masters' goods and enticing others to go with 
them, worked to the detriment of the masters and the peril 
of the colony. The courts had attempted by the most severe 
punishments to put a stop to the practice. Whipping, addi- 
tions of time from one to seven years, branding, and even 
servitude in irons, proved ineffectual. The possibility of 
entire escape from servitude or of service on better terms 
proved too great a temptation, and with an unruly class of 
servants such attempts became habitual. Statute after 
statute was passed regulating the punishment and providing 
for the pursuit and recapture of runaways; but although 
laws gradually became severer and finally made no distinc- 
tion in treatment between runaway servants and slaves, it 
was impossible to entirely put a stop to the habit so long as 
the system itself lasted. The loss to the master was often 
serious even if he recovered the servant. A loss of time 
from several months to a year or more, and the expense of 
recapture, which at first fell upon him, made the pursuit of 
the servant often not worth while for the remaining time for 
which he was entitled to his service." The rise of this prac- 
tice was not due to the severity of the service to which the 
servant was subjected. The courts, we have seen, provided 
a speedy remedy for any misusage, and by an act of 1642 it 
was provided that " where any servants shall have just cause 

^ Col. Rec. Va., 22; Hening, I., 253, 254, 401. 

=^ MS. Rec. Genl. Ct., 201; Hening, III., 277, 452, 458. 



311] Indented Servitude. 53 

of complaint against their masters or mistresses by harsh or 
unchristianHke usage or otherwise for want of diet, or con- 
venient necessaryes that then it shall be lawful for any such 
servant or servants to repair to the next commissioner to 
make his or their complaint." The commissioner was then 
required to summon the master or mistress before the 
county court which had discretion to settle the matter, tak- 
ing care "that no such servant or servants be misused by 
their masters or mistresses where they shall find the cause of 
the complaint to be just" Runaways began to increase 
with the importation of an undesirable class of ser- 
vants, a few of whom were present in the colony 
from the earliest days, and who during this period 
were largely recruited by the addition of felons and 
" spirited " persons. They were the common offenders, 
and by their habits corrupted the better class of ser- 
vants.^ When this class grew more numerous in the latter 
half of the seventeenth century servants became so demoral- 
ized that they would run away in "troops," enticing the 
negro slaves to go with them. In counties whose situation 
made escape peculiarly easy the abuse was very great. In 
1 66 1 it had become so bad in Gloucester that the Assembly 
authorized that county to make whatsoever laws it saw fit to 
meet the case of such runaways.^ Servants would plot how 
they might run away even before they landed in Virginia,"" 
and under the liberty given them on the plantations, and 
with an accessible back country, it was not a difficult matter 
to accomplish. They frequently made their escape to the 
adjoining provinces of Maryland and North Carolina, where 
their condition being unknown they might enjoy their free- 
dom, or if discovered their recovery was attended with such 
difficulties as to insure their safety. 

^MS. Rec. Va. Co., Library of Congress, 11., 21; Westover 
MSS., II., 240. Cal. State Papers, Col. 19: Domestic, 447, 594, 
1635, July 8, Dec. 5. Purchas, His Pilgrimage, 1809 (Virginia 
Verges); Neill, Lond. Co., 120, 160, note. 

Aliening, II., 273. '/&id, III., 35. 



54 White Servitude in the Colony of Virginia. [312 

The right of the master to claim his servant in another 
jurisdiction was one not always recognized, even though the 
institution existed there, as it depended on colonial legisla- 
tion having an intercolonial application. In the absence of 
statutes providing for the return of fugitive servants from 
one jurisdiction to another, the justices refused to take the 
responsibility of acting, and so frequently much injustice and 
inconvenience resulted. The only redress left to the master 
was the power to levy on goods in Virginia belonging to 
inhabitants of the province in question.^ North Carolina 
became such an asylum for absconding servants and slaves 
that it was popularly known in Virginia as the " Refuge of 
Runaways." The Eastern Shores of Virginia and Mary- 
land were also favorite resorts. Servants frequently escaped 
to the Dutch plantations and sometimes even to New Eng- 
land. To restrict the practice and to prevent absconding 
debtors, a pass was required for any person leaving the 
colony, and masters of ships were put under severe penalties 
not to transport any servant or slave without such a pass or 
license from his master,"" Certificates of freedom were also 
required to be given in due form to every servant on the 
expiration of his term, and under the power given by the 
statutes any person travelling in the colony, if not able to give 
an intelligent account of himself or to show his certificate, 
might be taken up as a runaway. The law for the capture of 
runaways was at first very inefficient, and went through a 
number of experimental changes before one that was effect- 
ive was discovered. In the first acts relating to runaways no 

^Hening, I., 539; Northampton Rec, II., 149; Hening, 1661, 
Drummond's servant. An interesting question might have arisen 
as to the master's claim had a runaway servant escaped to Eng- 
land or to a foreign country where the institution was not rec- 
ognized. No such case seems to have occurred. A transported 
felon would probably have been seized and treated as an es- 
caped convict in England, but what remedy the master could 
have had in this case, or when the fugitive was not a felon, is 
not clear. 

2 Hening, III., 271; IV., 173; IX., 187. 



313] Indented Servitude. 55 

means of discovery and no method of pursuit and return to 
the master were prescribed. The pursuit seems at first to 
have devolved upon the master, but the loss resulting from 
this caused the General Court in 1640 to direct pursuit to be 
made by the sheriff and his posse at the expense of the 
county from which the fugitive escaped. Pursuit by hue 
and cry, adopted from the English custom, seems also to 
have been in use, but by 1658 it had been so much neglected 
that a special act for its enforcement was necessary.^ Con- 
stables also pursued under search-warrants, but they neg- 
lected their duty, and in 1661 the Assembly had to promise 
them rewards of 200 lbs. of tobacco from the master. This 
proved insufficient and had to be increased and even paid 
out of the public revenues, to be reimbursed by the master. 
Additional rewards from £3 to £10, according to the value 
of the servant and his distance from home, were offered by 
masters. In 1669 the practice was so bad that any one 
was permitted to take up a runaway and receive a reward of 
1000 lbs. of tobacco from the public, to be reimbursed by 
the servitude of the offender " to the country when free of 
his master."^ 

In consequence of the growth of these abuses, and de- 
signed as a corrective of them, we find a great extension of 
the principles of additions of time and of corporal punish- 
ment, to such a degree in fact as to prove often a source of 
great injustice to the servant. The principle of additions of 
time, we have seen, was early extended by the action of the 

^ Hening, I., 255, 401, 483, 539. Reeves, V., 355 (rev. ed.). The 
hue and cry was an ancient method of pursuing offenders in 
England, and rested on the statute of Winchester, 13 Edward 
I., 81, 82, c, I., and on 28 Ed. III., c. II. In Virginia a warrant 
was issued by the governor or some of the council, or a com- 
missioner of the county, and masters of households were put 
under penalty of 100 lbs. of tobacco for its speedy conveyance 
from house to house. ^ 

== Hening, II., 21, 273; Va. Gazettes, 1736, *Dec. 17, Feb. 25, 
Mar. 11. To facilitate discovery, habitual runaways had their 
hair cut " close above the ears," or were " branded in the cheek 
with the letter R." Hening, I., 254, 440, 517. 



56 White Servitude in the Colony of Virginia. [314 

courts beyond its application as a punishment merely, and 
became the ultimate resort of the master in his legal claim 
of damages for breaches of contract by the servant;^ but 
some confusion seems to have existed in the minds of the 
judges and the framers of the later statute law as to the 
exact theory on which the principle should be applied. 
Though continued as a punishment until the abolition in 
1643 ^^ servitude to the colony for ofifenses, it seemed in the 
case of several kinds of offenses, both before and after that 
time, to partake of the nature of damages to the master for 
loss resulting from the offense, as well as of a penalty for the 
offense itself. In other cases it was clearly viewed in the 
light of damages alone. It was of the former character gen- 
erally in such offenses as secret marriage and fornication, 
and of the latter for unlawful absence from his master's ser- 
vice or for acts of violence toward his master or overseer. 
The' term of servitude that was imposed was determined by 
the offense or the damage sustained, and was, except in a 
few offenses, not excessive, varying from one to two years. 

^MS. Eec. of Genl. Ct., 1640, 3, 8, 9, 10, 11, 12, 13, 16, 52, 53; 
Ace. Rec. MS., 1633, 10. The practice of the courts was not 
uniform, however. The General Court, on the 9th of July, 1640, 
ordered two runaway servants to be punished by whipping 
and " to serve out their time and add a year to their master 
to recompense his loss by their absence"; but a few months 
later a master was denied his claim to three months service 
due him by a servant's loss of time. At a court held the follow- 
ing week, the master of certain runaways is given a year's 
additional service, or " longer if said master shall see cause " 
for their loss of time, and for sheriff's fees paid by ' 
masters, "the servants shall make good the same at the 
expiration of their time by a year's service apiece to their 
said masters." A maid-servant who was guilty of fornication 
was ordered to " serve her full time to her master as by cov- 
enant," and her husband to make satisfaction " for such further 
damages " as the master should make appear. The Accomac 
county court ordered a servant " to perform the full term of 
his indentures faithfully and truly " or to stand to the " cen- 
sure " of the court. This was a case where recourse might 
have been had on the freedom dues as damages, but the court 
left these to the servant. 



315] Indented Servitude. 57 

In such cases as fornication or having a bastard the addition 
might be considerable. A woman-servant, for having a bas- 
tard, served her master from one and a half to two and a half 
years, and if the bastard were by a negro or a mulatto she 
might be sold to additional service for five years for the 
benefit of the public. Besides the master's claim on the 
female servant he might claim also a year's service from the 
guilty man, but in both cases the servant was given liberty 
to discharge this claim by a money satisfaction as in the 
case of free persons.^ 

The greatest abuse of additions, however, arose in con- 
nection with runaway servants. Before terms were defi- 
nitely specified by statutes they were capable of very arbi- 
trary assessment at the hands of the courts. The length of the 
term was sometimes left to the discretion of the master or 
was adjudged more than he himself cared to exact. Addi- 
tional terms from two to seven years, served in irons, to the 
public, were prescribed in extreme cases.^ The additions 
possible under the statutes were also very great, as ultimate 
recourse was had on the servant for all the expenses of his 
capture and return to his master. These expenses included 
rewards, sheriff's fees and jail fees. These latter were not 
fixed until 1726, and were a source of great abuse. When 
the master refused to pay these expenses, or could not be 
found, the servant was publicly sold or rented for such a 
time as would repay the public disbursements, and was then 
returned to his master to serve the remainder of his time and 
that due by addition.^ The act of 1643 provided that runa- 
ways from their " master's service shall be lyable to make 
satisfaction by service at the end of their tymes by indenture 
(vizt.) double the tyme of service soe neglected, and in some 
cases more if the commissioners — find it requisite and con- 

^ Hening, I., 438; II., 114, 115, 168; III., 87, 140, 452. By an act 
or 1662 the father was liable to make satisfaction to the parish 
by additional service for the keeping of the child. 

^Robinson MS., 9-13; MS. Rec. Genl. Ct., 154, 161. 

'Hening, I., 255, 539. 



58 White Servitude in the Colony of Virginia. [316 

venient," and subsequent acts allowed the master to recom- 
pense himself by service for all expenses to which he had 
been put in recovering his servant. The rate at which he 
could do this was fixed by the act of 1705 at one year's ser- 
vice for every 800 lbs. of tobacco, or a month and a half for 
a hundred pounds.^ The servant, however, might commute 
this penalty by giving security for the payment of these ex- 
penses within six months, and the master was forced to 
accept security or payment when offered. The servant was 
also protected from injustice by the necessity imposed upon 
the master of presenting his claim in the next county court 
after the return of the runaway, or becoming liable to the 
loss of it altogether.'' Where the master's goods had been 
stolen, or negroes enticed to accompany the runaway, the 
addition of time sufficient for compensation might be 
large. The servant was required to serve for the lost time 
of the negro as for his own, since the negro was held by a 
statute of 1661 to be "incapable of making satisfaction by 
addition of time.""" Additions thus frequently amounted to 
as much as four or five years, or even seven in some cases, 
and were often more than the original term of servitude.* 

Corporal punishment as a common mode of regulating 
the servant's conduct was acquired by the master as a legal 
right during this period, and when retained in the hands of 
the local magistrate or other officers it became, under the 
power given by the statutes, readily susceptible of abuse. 
The extension of this important power beyond the admin- 
istration of the courts was largely a result of the necessity of 
providing some severe correction in the case of runaways. 

^Hening, II., 458. 

^Ibid., III., 456, 458, 459; IV., 168, 171; XII., 191. 

^ lUd., II., 26. This is said to be the first statute sanction- 
ing negro slavery in Virginia, but as early as 1625 the status 
of the negro, according to Jefferson, was determined by a 
case in the General Court. Jeff. Cases, Genl. Ct., 1730, etc., 119, 
note. 

*MS. Rec. Genl. Ct, 1672, 3, 12, 15, 35, 44, 154, 158, 161, 188. 



317] Indented Servitude, 59 

The servant had generally no means wherewith to remit a 
fine, and so in penal offenses, where free persons were fined, 
we have seen that the servant was whipped, unless his master 
discharged the fine. In many cases also it was a general 
punishment both under the laws of England and under those 
cf the colony, so that a law of 1662 provided for the erecting 
of a whipping-post in every county ; but even before this time 
the master had assumed the right of administering corporal 
punishment to his servant. In this year it became a right 
recognized by law, but when a master received an addition 
of time for his servant's offense it remained doubtful whether 
corporal punishment could also be administered. This 
question was settled by the Assembly in 1668. It was de- 
clared that " moderate corporal punishment " might be given 
to runaways either by the master or by a magistrate, and 
that it should "not deprive the master of the satisfaction 
allowed by law, the one being as necessary to reclayme them 
from perishing in that idle course as the other is just to 
repaire the damages sustained by the master."^ The power 
thus given was doubtless abused, for in 1705 an act was 
passed restraining masters from giving " immoderate cor- 
rection," and requiring an order from a justice of the peace 
for the whipping of " a christian white servant naked," under 
penalty of a forfeit of forty shillings to the party injured. 
The act is significant as showing also the master's right to 
employ corporal punishment as a regulation of the conduct 
of servants in general.'' 

Slaves were for the first time included in the act against 
runaways in 1670, and it was provided " that every constable 
into whose hands the said ffugative shall by any commis- 
sioner's warrant be first committed shall be and hereby is 
enjoyed by vertue of this act (though omitted in the war- 
rant) to whip them severely and convey him to the next con- 
stable (toward his master's home) who is to give him the like 
correction and soe every constable through whose precincts 

^ Hening, II., 75, 115, 118, 266. ^ lUd., III., 448. 



60 White Servitude in the Colony of Virginia, [318 

he passeth to doe the Uke."^ In 1705 the severity of this act 
was somewhat mitigated by requiring justices who made the 
commitment to the constable to specify in their warrants the 
number of lashes to be given the runaway, " not exceeding 
the number thirty nine." Corporal punishment was also 
extended in offenses committed against the master solely. 
In 1673 the General Court ordered that a servant " for scan- 
dalous false and abusive language against his master have 
thirty nine lashes publicly and well laid on in James City and 
that he appear at Middlesex County Court next and there 
openly upon his knees in the said court ask forgiveness 
which being done is to take of any further punishment al- 
lotted him."' 

Besides the power to regulate his servant's conduct and en- 
force the performance of his duties, the master acquired a 
sort of general control over his servant's person and lib- 
erty of action. By custom the servant enjoyed frequent 
respites from service and might freely employ this time as he 
saw fit. In consequence of an abuse of this privilege, how- 
ever, it became necessary to restrict it upon the consent of 
his master. The plot of certain servants in Gloucester 
county in 1663 to rise against their masters and subvert the 
government caused great alarm throughout the colony, and 
led to a strict regulation of the liberty previously allowed ser- 
vants of leaving their masters' plantations and assembling 
together. To suppress " unlawful meetings of servants," an 
act directed "that all masters of fifamilies be enjoyned to 
take especial care that their servants do not depart from their 
houses on Sundays or any other dayes without particular 
lycence from them," and the different counties also were 
empowered to make by-laws for preventing unlawful meet- 
ings and for punishing offenders.^ 

^ Hening, II., 278. ^ MS. Rec. Genl. Ct, 44, 136. 

^Hening, II., 195; cf. 171, 441; Neill, Va. Carolorura, 295, 
296. Beverley, 55, 56. The attempt was made by a number of 
transported Oliverian criminals, who made use of the general 
political and religious discontent of the time. It was not a servile 
insurrection due to the harsh treatment of servants. 



319] Indented Servitude, 01 

Though the servant's right to the personal enjoyment of 
his property was recognized when protected by the terms of 
his contract or by the courts, his disposal of it became con- 
ditioned on his master's consent by the acts against dealing 
with servants, and the right of trade was practically taken 
away.^ The habit had also grown up on the part of mas- 
ters of converting to their own use goods brought in by 
their servants or afterwards consigned to them. In 1662 an 
act was passed to restrain this, providing that all servants 
" shall have the propriety in their owne goods and by per- 
mission of their master dispose of the same to their future 
advantage." The revisal of 1705 confirmed the right of ser- 
vants to goods and money acquired "by gift or any other 
lawful ways or means," with " the sole use and benefit thereof 
to themselves," making no reference to the necessity of the 
master's consent for a disposal of them. The continuation 
of the act against dealing with servants was a practical limi- 
tation, however, of any rights they may have had.^ The 
servant's right to the possession of his personal estate now 
rested on statute and not on the occasional action of the 
courts or the will of his master; but he could not during 
servitude acquire a freehold interest in land, and tenancy of 
small tracts with the permission of the master was excep- 
tional.' 

Other important rights became fixed or limited by 



I 



^Hening, I., 274, 445; II., 119. 

^Hening, II., 165; III., 450, 451; IV., 49. The servant fre- 

uently enjoyed tlie right of trade, however, with his master's 
consent, and many masters, besides paying wages or making 
gifts of money and stock, allowed servants the use of tracts of 
land. (Bullock, Account of Va., 1649, 52, 59.) 

^Hening, IV., 46, 47, 49. An act of 1713 restrained a servant 
and overseer from keeping horses " without the license in writ- 
ing of his master or mistress," nor could the master give license 
for the keeping of more than one, the reason by the act alleged 
being that great numbers were kept by persons who had no 
interest in land, and were so " suffered to go at large on the 
lands of other persons," which was " prejudicial to the breed 
of horses " and " injurious to the stocks of cattle and sheep." 



62 White Servitude in the Colony of Virginia, [320 

the statute law of the period and certain new rights were 
developed. The servant's claim to freedom dues recognized 
by the custom of the country and enforced by the courts was 
at first only a general one and not specific, the amount 
granted varying according to the will of the master or of the 
court in which it was sued for, unless it had been specified 
in the contract. A clause was inserted in the act of 1705 
confirming this right and making it thereafter certain in 
amount. Every male servant was to receive upon his free- 
dom "ten bushels of indian corn, thirty shillings in money 
or the value thereof in goods and one well fixed musket or 
fuzee of the value of twenty shillings at least"; a woman- 
servant fifteen bushels of Indian corn and forty shillings in 
money or value. In later times these dues were discharged 
by a money equivalent and gifts of apparel."^ 

The freedom of a servant could be proved either by refer- 
ence to the registry of his contract or to a court record, if he 
did not himself have a certificate of the fact from the county 
court or commissioner or from his master. In 1662, to 
facilitate the discovery of runaways and to protect innocent 
persons from arrest as such, or from penalties for entertain- 
ing suspected runaways, the clerk of the county court was 
directed to issue a certificate of freedom to every servant who 
adduced proof before the court of the expiration of his 
term."" Though designed as much for the protection of the 
master as of the servant, it became of great importance to 
the latter as his title to liberty and a guarantee that his rights 
as a free man would be fully respected. The necessity of 
such a guarantee appears not only from the restrictive nature 
of the legislation of this period, but from the records of the 
old General Court. Meager as they are, they present a 
number of instances of servants suing for their freedom who 
were either held or sold for periods longer than their lawful 
time.^ The right was much abused, however, on the part of 

^ Hening, III., 151. == Hening, I., 254; II., 116. 

'MS. Rec. Genl. Ct, 150, 156, 158, 161, 162, 166, 173, 204, 218 
(1673-75). 



321] Indented Servitude. 63 

the servant. Heavy penalties had continually to be inflicted 
to prevent the theft of certificates or the use of forged or 
counterfeit ones. Stringent regulations had to be put on 
the granting and re-issuing of them, and where the servant 
made a fresh contract for service the certificate was to remain 
in the hands of the master till the contract expired."" The 
servant was further protected from an involuntary extension 
of his contract with his master by any intimidation or pressure 
brought to bear upon him by reason of his unequal position. 
After 1677 no contracts for further service or for freedom 
dues could be made by a master with his servant during 
servitude except with the approbation of " one or more jus- 
tices of the peace/' under penalty of having to free his ser- 
vant. By 1705 any contract for "further service or any 
other matter relating to liberty or personal profit" between 
master and servant had to be made in the presence and with 
the approbation of the court of the county. A practical 
limitation was also put upon the master's absolute right of 
assignment of his servant's contract. As the white servant 
was considered a Christian, as originally from a Christian 
land, the principle was established that he could only be held 
in servitude by Christians or those who were sure to give 
him " christian care and usage." Thus free negroes, mulat- 
tces or Indians, although Christians, were incapacitated from 
holding white servants, and so also were all infidels, such as 
"Jews, Moors and Mohometans." Where any white ser- 
vant was sold to them, or his owner had intermarried with 
them, the servant became " ipso facto " free."" 

An important right acquired by the servant during this 
period was the power given him to bring his complaint into 
court by petition " without the formal process of an action.'^ 
This right, confirmed by the act of 1705, proved a great 
boon to the servant in case of unjust usage. The county 
court had full discretion in such a case and might free or sell 

^ Hening, I., 254; II., 116; III., 454, 455. 
^Hening, III., 450. 



64 White Servitude in the Colony of Virginia. [322 

the servant away from his master. The right was extended 
to complaints of every character affecting the servant's 
rights. He could in this way sue for his freedom dues, his 
property or wages, or for damages for unlawful whipping. 
Another right granted by the act was that of commutation 
by a money satisfaction of corporal punishment for breach 
of the penal laws, and of additions of time for the expenses 
of capture in the case of runaways."" A right which was im- 
plied, if not expressly stipulated for in the contract, was that 
of a sick or disabled servant to claim support and medical 
attention at his master's charge during servitude, without 
any reciprocal right on the part of the master to further ser- 
vice therefor. The master was prevented by the liability of 
his goods and chattels to seizure from avoiding this obliga- 
tion by freeing his servant and throwing him upon the 
parish.^ 

Such rigor as is perceptible in the legislation of this 
period, and in general regarding the servant, we have seen 
appears particularly in the case of runaways, and is to be 
traced to the influence of the developing institution of slav- 
ery. Little practical distinction was made in the treatment 
of runaway servants and slaves where the practice was ha- 
bitual, and the servant by his association with the negro 
fugitive became subjected to indignities that would not 
otherwise have been inflicted.^ The influence of slavery is 
also to be traced in the disposition to regard the servant as 
property and subject to the same property rights as the rest 
of the personal estate. As an important part of his master's 
estate he had become liable to the satisfaction of his debts 
and could be levied on equally with the goods and chattels.* 

^ Hening, III., 448, 452, 453, 459. ^ IMd., III., 449, 450. 

'lUd., III., 456; IV., 170, 171. 

* Northampton Co. Rec, 147, 149; Fitzlingh's Letters, July 22, 
1689. Fitzhugh writes to Mr. Michael Hayward that his deb- 
tor's estate is probably sufficient to save his debt, as he has 
" 4 good slaves with some other English servants, and a large 
stock of tobacco"; York Co. Rec, 86. 



323] Indented Servitude, 65 

The conception of the servant as a portion of the personal 
estate is shown to be fully developed by an act of 171 1, 
which directed that servants and slaves should be continued 
on the plantation of a person who died intestate, or who did 
not otherwise direct in his will, to finish the crop, upon 
which they were to remain in the hands of the executors or 
administrators ; while the slaves were then to pass to the heirs 
at law, as by the act of 1705 they had been declared to be 
real estate/ 

The period is thus characterized by a twofold develop- 
ment: first, on the part of the master, from a conception of 
his right to the service guaranteed by the contract and to 
such incidents as enabled him to realize this right, to a con- 
ception of property in the servant himself which he would 
employ to the utmost advantage allowed him by the law; 
and on the part of the servant, from a desire to fulfil the con- 
ditions of his contract to a desire in general to escape from 
servitude whether based on lawful contract or on the exac- 
tion of his master: secondly, a reduction of the relation of 
master and servant to fixity and uniformity throughout the 
colony by the action of statute law in ascertaining their 
respective rights and duties. 

Third Period, 1726- 1788. — During this period the institu- 
tion of white servitude gradually declined before the grow- 
ing institution of negro slavery, which proved economically 
far superior to it. We find the development of no new 
rights on the part of the master, and on the part of the ser- 
vant only that of assent to the assignment of his contract. 
This was not granted until 1785, when the system itself was 
practically at an end. The contract could now be assigned 
only on the free consent of the servant, attested in writing by 
a justice of the peace. 

The various modifications introduced affecting rights 
already established were generally in mitigation of the ser- 
vant's condition, and point to a very rapid decline of in- 

^Hening, IV., 284. 



66 White Servitude in the Colony of Virginia. [324 \ 

dented servitude after the middle of the century. This is i 
indicated by a reduction of penahies for such abuses as har- 
boring runaways or dealing with servants, and by the repeal | 
in 1763 of former acts providing for the servitude of persons ; 
who came in without indentures, while making no provision I 
to regulate it in future. In 1765 the practice of binding the | 
bastard children of a white woman-servant or free woman for j 
thirty-one years was declared by the Assembly to be " an I 
unreasonable severity to such children," and the term was j 
Hmited to twenty-one years for males and eighteen for fe- j 
males. By the act of 1769 they were to be treated as appren- i 
tices, to be instructed and to claim all the rights of other j 
apprentices.^ Unimportant changes were introduced in the i 
law relating to runaways designed to facilitate their recovery \ 
with least expense to the master and consequently with least j 
injustice to the servant." Freedom dues were fixed with a \ 
money equivalent, and were the same for both men and \ 
women. Injury to a servant might be redressed by " imme- j 
diate discharge" from service by order of a court The j 
legislation as a whole was not important and developed no \ 
new principles. The legal fixity of the conception of the | 
servant as a piece of property is apparent, and becomes fur- | 
ther developed through the influence of slavery and as a i 
result of the long terms, of from seven to fourteen years, on | 
which the English felons were transported to the colony.^ I 
The act of 1785 legally defines servants as "all white per- ] 
sons not being citizens of any of the confederated states of j 
America who shallcome into this commonwealth under con- ;! 
tract to serve another in any trade or occupation." This '. 
definition excluded slaves, hirelings who were citizens of J 
any of the confederated states, but included convicts (whose | 
importation was not finally prohibited until 1788) and ap- 1 
prentices from abroad. The term of servitude was limited 'j 

^Hening, III., 445, 451; V., 552; VI., 359, 360; VIII., 134, 135, } 

136, 337. ) 

^ Hening, V., 552, 557; VI., 363; VIII., 135, 136. ] 

^Hening, XII., 150, 151, 191; 6 Geo. III., c. 32; 8 Geo. III., c. 15. i 



325] Indented Servitude, 67 

to a period not exceeding seven years, except in the case of 
infants under fourteen who might be bound by their guar- 
dians until the age of twenty-one, and all servants, the act 
declares, "shall be compellable to perform such contract 
specifically dnving the term thereof." Corporal punishment 
by order of a justice was the power in a master's hands of 
enforcing such performance, and the benefit of the servant's 
contract was to pass to " the executors, administrators, and 
legatees of the master."^ 

We have seen that the relation of master and servant was 
at first a relation between legal persons, based on contract, 
and that such property right as existed consisted in the mas- 
ter's right to the labor and services of his servant, while the 
servant enjoyed a reciprocal right to support and, to some 
extent, to protection and instruction from his master; that 
gradually the conception of property grew at the expense 
of that of personality, and that with a limited class of ser- 
vants personal liberty became so restricted that they stood 
in respect to their masters in a position somewhat 
analogous to that of slaves. The broadest practical 
and legal distinction was made, however, between the 
servant in general and the slave, and the institution 
of white servitude differed widely from that of slavery, 
both in nature and in origin. It rested for its sanction 
on national or municipal law alone, while slavery was 
based upon international as well as municipal law. In 
extent servitude was of limited duration, while slavery 
was for life. The personality of the servant was always rec- 
ognized and his status could not descend to his offspring, as 
was the case with the slave's, nor did the master at any time 
have absolute control over the person and liberty of his ser- 
vant as of his slave. The servant always had rights which 
his master was bound to respect, and besides the guarantee 
of personal security enjoyed a limited right to private 

^ Hening, XII., 190, 191; lUd., Justice, 417, 418; Hening, XII., 
668. 



68 White Servitude in the Colony of Virginia, [326 

property. The conception of the servant himself as a piece 
of property did not go beyond that of personahy, while the 
slave did not remain as personal estate, but came to be re- 
garded as a chattel real or as real estate. The mutual effects 
of the institutions upon each other are shown, however, in 
the growth of this conception of property, and particularly 
also in the legislation respecting runaways, unlawful assem- 
blies, or absence from the master's plantation. Servitude 
may thus be regarded as preparing the way both legally and 
practically for the institution of slavery as it existed in 
Virginia.^ 

Social Status of the Servant. — The actual condition of the 
servant, though in great measure determined by his legal 
status and by certain social laws, was also largely influenced 
by many customs that had no sanction in law, and the dis- 
tinction between servant and slave became as clearly defined 
under the action of these and the practical working of the 
law as in the letter of the law. 

In regard to employment a marked distinction was fre- 
quently made between the servant and the slave. The in- 
dustry of the colony was chiefly agricultural, its staple 

^Hurd, Law of Freedom and Bondage, I., 116, 129, 139, 210, 
220. Robinson MS., 10, 243, 250, 256, 261. This is shown in the 
application of corporal punishment and of additions of time, and 
in the disposition to claim negro and Indian servants as slaves. 
In 1640 the addition of time for a negro runaway servant was, 
in a case brought before the General Court, servitude " for the 
time of his natural life here or elsewhere." Hening, II., 118, 
288, 481; III., 277; IV., 168, 171, 174, 202; Va. Gazettes, 1737; 
Tucker's Blackstone, Appd., 55-63. Though slavery assumed a 
comparatively mild form in Virginia, much of the criminal law 
relating to slaves was of a very discriminating and harsh char- 
acter, as was also the procedure. Of. acts of 1723, 1748, 1764, 
1772; Minor, Institutes, I., 161 et sq. Until 1772 no restriction 
was put on the outlawry of a slave, he might be killed in re- 
sisting arrest, and until 1788 the murder or manslaughter of a 
slave by his master might go unpunished, the presumption 
being that he would not wantonly destroy his own property. 

The influence of servitude upon slavery will be discussed at 
greater length in a monograph on Slavery in Virginia, now in 
preparation. 



I 



327] Indented Servitude, 69 

throughout the seventeenth century being tobacco. Where 
the servant was engaged in field labor he was worked 
side by side with the negro slave, under the direction of 
overseers who were frequently the best of his own class. 
This was not in itself a hardship, as the work was the same 
as that of the planters themselves and of every common 
freeman, and the servant was not required to do more in a 
day than was done by his overseer. As the number of 
negroes began to increase, the harder and greater part of 
the work was put upon them, and the servant, as more intel- 
ligent, was reserved for lighter and finer tasks. Though as- 
sociated with the negro, he was not compelled to live with 
him in "gangs" and "quarters," and, unlike him, could 
make complaint if insufficient clothing or lodging were pro- 
vided.^ Women-servants were commonly employed as do- 
mestics, as by an act of 1662 they became "tythable" and 
their master subject to the payment of levies for them if they 
were put "to work in the ground"; the negress, however, 
had no such exemption in her favor and was frequently em- 
ployed in field labor with the men. With regard to their 
labor, the slave, Beverley says, was better off than the hus- 
bandmen and day-laborers of England, and the servant's lot 
was still easier."" Very large numbers of the servants were 
also artisans and skilled workmen and were employed in 
building and other trades. Almost every profession was 
represented, and on the large plantations, which provided 
mostly their own necessities, there was a great demand for 
such servants and for industrial apprentices. Many servants 
were thus taken into the families of their masters in various 
capacities, and were treated with as much consideration as if 
working under a free contract for wages. Considerable 
domestic manufacturing was of necessity carried on at all 

' Va. MS. B. R. O., 302; Jones, Present State, 36. 

'Beverley, 219; Jones, Present State, 37; Hening, II., 170; 
Fitzhugh, MS. Letters, Jan. 30, 1686-87; Force, III., L. and R., 
12. 



70 White Servitude in the Colony of Virginia. [328 

times, and after the introduction of large numbers of slaves 
for the field labor, white servants were generally utilized for 
that purpose. They were thus better housed, clothed and 
fed than the negro, as a result of the position they occupied 
toward their master as well as from the protection afforded 
them by the law/ 

Besides a general social obligation of protection and de- 
fense recognized by most masters toward their servants as 
dependents, the law only held a servant responsible for his 
own free acts and not for those performed under the orders 
of his master.^ Where the servants were apprentices a high 
personal trust was involved, and the master, besides occupy- 
ing the position of guardian, was bound to render religious 
and secular as well as mechanical instruction. Not only 
was attendance at church required by law, but all servants 
and apprentices were to be instructed together with their 
masters' children every Sunday " just before evening prayer " 
by the minister of the parish. When such obligations were 
recognized, the great distinction between the positions of a 
servant and a slave is at once manifest.^ Where these obli- 
gations rested upon the provisions of the contract they seem 
to have been carefully guarded by the courts. A servant 
complained in a general court of 1640 of her "master's ill 
usage by putting her to beat at the mortar for all his house- 
hold " when he had promised " to use her more like his child 
than a servant " and to teach her to read and instruct her in 
religion, and the court considering the " grevious and tyran- 



^ Carpenters, joiners, sawyers, bricklayers, blacksmiths, en 
gravers, weavers, shoemakers, tailors, saddlers, bakers, teachers, 
surgeons and other craftsmen were imported. Va. Gazettes, 
1736 sq. 

2 Col. Rec. Va. Laws, 1619, 21, 28; Winder MSS., I., 245 (1667) 
Hening, III., 462, 463; IV., 425. 

' lUd., I., 143, 144, 157; II., 260; III., 459; IV., 133; XII., 681 
Jones, 92, 94; Stat, at Large Va., III., 124. Before 1667 baptism 
had in many cases been refused to slaves and their offspring, 
since doubts existed as to its effect on their status. It was then 
settled that baptism did not free the slave. 



329] Indented Servitude. 71 

ical usage" of her master, ordered her to be freed, though 
she had yet a year to serve, and to receive her freedom dues.^ 

Frequent respites from service were also granted. It was 
not only the custom to allow servants Saturday afternoons 
as well as the Sabbath for free disposal, but all the old holi- 
days were rigidly observed. An industrious servant was 
thus given an opportunity to lay up a competence for his 
start in the world as a free man. Tenure of small tracts of 
land was sometimes permitted by masters, and with the live 
stock given him he might raise cattle, hogs and tobacco and 
so become possessed of considerable property. The evolu- 
tion from the days of the London Company of an aristocracy 
of wealth rather than of blood was a somewhat slow process, 
so that there was nothing in the servant's position itself 
(except that it debarred him from the possession of landed 
property and consequently of certain civic rights) to con- 
demn him to a very inferior social position. No odium 
attached to his condition or person as to the slave's, and 
where he proved worthy of consideration he might enjoy 
many of the social privileges that would have been accorded 
him as a free man.^ 

The servant himself was disposed to regard his condition 
as only that of a free man rendering services for a sort of 
wages advanced to him in his transportation and mainte- 
nance, and his legal disabilities as only a temporary suspen- 
sion of his rights necessary to insure a more complete reali- 
zation by his master of the right to service. Constantly 
looking forward to his full freedom, he considered his posi- 
tion as analogous to apprenticeship, or to that of the ordi- 
nary hired laborer rather than to that of the slave. The 
natural pride of the free man sustained by this feeling, to- 
gether with the strong race prejudice that has ever separated 

^Robinson MS., 8. 

^^ Force, III., L. and R., 14; lUd., Virginia's Cure, 7, 10; Bul- 
lock, 52 sq. Instances are related of their appearing at social 
gatherings in their masters' houses on equal footing with the 
family and their guests. 



72 White Servitude in the Colony of Virginia. [330 

the Englishman from an inferior and dependent race, and his 
religious sentiment as a Christian, or at least of Christian 
origin, sufficed to make a very great practical distinction 
between his social position and that of the negro and Indian, 
slave or free. These sentiments were effective with the bet- 
ter class of servants in keeping them aloof from association 
with such inferiors. With convicts and the lower classes, 
where such considerations were not always sufficient, the 
law took precaution by the most stringent measures to up- 
hold them and to prevent race contamination. Freemen 
and servants alike were subjected to severe penalties for 
intercourse with negroes, mulattoes and Indians, and inter- 
marriage with them or with infidels was prohibited by many 
statutes prescribing the punishment both of the offender 
and of the minister who performed the ceremony.^ The 

^ Hening, I., 146, 552; II., 170; III., 86, 252. The Governor and 
Council in court in 1630 ordered " Hugh Davis to be soundly 
whipped before an assembly of negroes and others for abusing 
himself to the dishonor of God and shame of a christian by de- 
filing his body in lying with a negro which fault he is to 
acknowledge next sabbath day." A similar case came before 
the court the next year. Very few negroes, however, were 
brought to Virginia before the latter half of the century, but 
the records of the general court during the period (1670-76) of 
increased importations of negroes under the African Company, 
having no reference to the recurrence of the offence, points to 
a disposition on the part of the whites in general to avoid race 
contamination. The growth of a considerable class of mulattoes, 
particularly mulattoes by negroes, is appreciable towards the 
end of the century, however, and is shown by the passing of 
several acts to restrict it. The first statute on the subject, that 
of 1662, imposed double fines for fornication with a negro, 
but no occasion for restricting intermarriage seems to have 
arisen till 1691, when an act was passed " for prevention of 
that abominable mixture and spurious issue which hereafter 
may encrease in this dominion as well by negroes, mulattoes 
and Indians intermarrying with English or other white women 
as by their unlawful accompanying with one another," and pun- 
ished the intermarriage of a free white man or woman with a 
negro, mulatto or Indian, bond or free, with banishment for- 
ever from the colony within three months after the marriage, 
and the justices of the county were "to make it their perticular 
care that this act be put into effectual execution." The revisal 



331] Indented Servitude, 73 

limitation of servants' marriages upon the master's consent 
was a sufficient safeguard in their case, and but Httle respon- 
sibility may be regarded as attaching to them for the growth 
cf the mulatto class. As was natural between two dependent 
classes whose conditions were different and widely in favor 
of one class, race prejudice and pride were at their strongest 
and developed jealousies which did not exist between the 
master and his dependent or the freeman and the slave. A 
disposition on the part of servants to keep themselves free 
from all association with negroes is very perceptible. 

The presence in the latter part of the seventeenth century 
of quite a number of the English lower classes and criminals, 
together with a greater development of the aristocratic sen- 
timent from the influx of a considerable number of gentle- 
men just after the civil war inl England,^ had the effect of les- 

of 1705 altered this penalty to the imprisonment of the offender 
six months and a fine of ten pounds Virginia currency, the person 
who performed the marriage forfeiting ten thousand lbs. of to- 
bacco. When a woman-servant was guilty of having a mulatto or 
negro bastard she was, as a free woman, sold for five years as a 
punishment, or subjected to a fine of fifteen pounds, while the 
necessity of the master's license barred the unlawful intermar- 
riage of servants. Where the offense occurred, then it was more 
likely to do so in the case of a free person than of a servant, 
as the master would not be likely to give his consent to any 
such marriage, having much to lose and nothing to gain from 
the service of the issue which might be sold away from him by 
the churchwardens of the parish. In one instance a girl was 
given her freedom because her master had consented to such a 
marriage, and such rulings of the courts probably checked ex- 
ceptional cases. The practical distinction to be made between 
servants as whites, and negroes and Indians was one constantly 
recognized by the courts and the Assembly. The consideration 
of racial distinction alone seems to have led the Assembly in 
1670, when the question of the legal power of the free Christian 
Indian or negro to hold a servant came up, to declare in the 
negative. Hening, II., 168, 280; III., 86, 87, 453, 454; Rob. MS., 
256. 

^Beverley, 232, 233; Wirt, Life of Henry, 34. Va. MSS. B. R. 
O., Vol. II., pt. I., 291. The importance of the introduction of 
these persons into Virginia society has been probably exagger- 
ated. Gov. Nicholson, writing to the Lords of Trade, Dec 2, 
1701, says: " Fit and proper persons for executing the several 



74 White Servitude in the Colony of Virginia. [332 

sening the barrier between servant and slave and increasing 
that between the ruHng and dependent classes. Yet with the 
middle classes, the smaller planters and the yeomanry, who 
still constituted the great body of the inhabitants, and were 
to an important extent recruited from the freed servants 
themselves, no such caste feeling was produced, and the gen- 
eral social position of the servant continued to be widely dis- 
tinguished from that of the slave. 

The real condition of the servant in the American colonies 
was much better than has generally been supposed, and was 
decidedly better in Virginia than in some of the other colo- 
nies. Though what was practically white slavery seems to 
have existed in some of the island plantations of England, 
there is no instance, so far as I have been able to discover, 
of a white person sold into slavery in Virginia. How far the 
general character of white servitude differed from slavery 
has been sufficiently shown, and in considering the apparent 
barbarities to which a servant was subjected we should re- 
member that neither in England nor on the Continent was 
the condition of the dependent classes any better. The doc- 
trine of the rights of man had not yet arisen in the seven- 
teenth century, nor was it until the latter part of the next 
century that its practical fruits began to appear. It was 
reserved for the revolutionary movement of the eighteenth 
and nineteenth centuries, which brought political and re- 
offices and imployments decrease— in twenty or thirty years if 
the natives cannot be prepared fewer or none will be found 
capable of executing the several offices, for there is little or no 
encouragement for men of any tolerable parts to come hither, 
formerly there was good convenient land to be taken up and 
there were widdows had pretty good fortunes which were en- 
couragements for men of good parts to come but now all or 
most of these good lands are taken up and if there be any wid- 
dows or maids of any fortune the natives for the most part 
get them, for they begin to have an aversion to others calling 
them strangers. In the civil war several gentlemen of quality 
fled hither and others of good parts but they are all dead, and 
I hope in God there never will be such a cause to make any 
come in again." Beverley, who was opposed to Nicholson and 
his government, confirms this view. 



333] Indented Servitude, 75 

ligious liberty to America and a great part of Europe, to 
completely develop the idea of personal liberty. Not until 
the late years of the eighteenth century was feudal serfdom 
generally abolished on the continent of Europe, and as late 
as 1835 the prison and the flogging board still constituted a 
part of the equipment of every Hungarian manor/ In Eng- 
land villeinage passed away comparatively early as a result 
of the social disturbances of the fourteenth century, though 
a case was pleaded in the courts as late as 161 8. Its extinc- 
tion was thus gradual without any legislative abolition, and 
it was many years before the principle of free contract labor 
was fully worked out. The tendency of the agrarian re- 
forms of England, in contrast to those of some continental 
<:ountries, was to develop a class of landless freemen whose 
position was worse than if they had possessed land on semi- 
servile conditions. The small farmer gradually gave way 
"before the capitalist farmer, and the large laboring class that 
was formed was stripped of all interest in the soil. These 
laborers were compelled to work by the various statutes 
regulating labor and apprenticeship under some master, and 
liad to do so generally on long terms, with fixed wages and 
hours of labor, and restrictions were placed on departure or 
dismissal from service under severe penalties. The system 
introduced by the final statute of laborers, the so-called 
Statute of Apprentices of 1563, embodying the results of 
many previous measures, had the efifect of checking migra- 
tion of servants and in general of lengthening the period of 
servitude, and remained effective until the industrial revolu- 
tion which followed the introduction of machinery.^ 

Some improvement in the economic condition of Eng- 
lish servants is discernible during the latter part of the sev- 
enteenth century, but not much can be said as to the better- 
ment of the social condition. Where they were in their mas- 
ter's household, and received rations and apparel in part pay- 

^Fyffe, Mod. Europe, I., 21, 24, 26. 

^ Taswell-Langmead, Constitutional History of Eng., 316, note; 
€unningham, 40-42, 184, note, 192, 198-200, 362, 387, 388. 



1 



76 White Servitude in the Colony of Virginia. [334 

merit of wages, they were not generally as well fed and 
clothed as the indented servants in Virginia. Their labor 
was more burdensome and the arbitrary treatment to which 
they were subjected was frequently more severe. Corporal 
punishment was a common mode of regulating their con- 
duct, and shackles were used to prevent their running away. 
For extreme maltreatment on the part of the master the only 
redress was discharge from service, or in some cases a paltry 
forfeit of less than a pound to the servant. They were fre- 
quently discharged from their service contrary to the statute, 
and besides maltreatment their wages and apparel were often 
withheld. The condition of the English servant was thus 
sufficiently bad to make numbers of them migrate to Vir- 
ginia in the hope of bettering it.^ 

^Cunningham, 192, 193, 196; Beverley, 220; Jones, 92. Old- 
mixon, 290: " If hard work and hard Uving," he says, " are 
signs of slavery, the day laborers in England are much greater 
slaves." Middlesex Co. Ree., II., 22, 100, 101, 120, 130, 138; III., 
23, 117, 318; IMd., S. P. Rolls, Oct. 8, 1655; lUd., 6 Chas. I., p. 
34; 18 Chas. I., 117; 13 Chas. II., 318; Aug. 27, 1652, p. 209; 4 
Chas. I,, 23. The Middlesex records and sessions rolls give a 
number of interesting cases that throw light on the condition 
of the English servant. For an assault upon his master, an 
offense which would have been punished in Virginia by whip- 
ping or addition of time, a servant was in 1618 adjudged "to be 
imprisoned for a year, to be flogged on two market days at 
Brainford, to be put one day in the stock at Acton and on his 
knees in the open church to ask forgiveness of his master and 
afterwards to be reimprisoned." Unruly and disorderly servants 
and apprentices were sent to houses of correction, when they 
became effective after 1609, " to labour hardly e as the quality of 
their offence requireth." In 1652 a servant on covenant for a 
year's service complained of her mistress, and the sessions 
found " that the said lady did violently beat her servant with 
a great stick and offered to strike her with a hammer and that 
the said lady doth retain the wages due," and ordered dismissal 
and payment In another case a master confesses "that he 
hath most uncivilly and inhumanly beaten a female servant— 
with great knotted whipcord— so that the poor servant is a 
lamentable spectacle to behold." Another master was held to 
answer " for giving his servant immoderate correction by beat- 
ing him with three roddes one after the other." A case which 
inust be regarded as very exceptional occurred in 1655. An ap- 



335] Indented Servitude, 77 

That the servant sometimes met with very harsh treat- 
ment cannot be denied, hov^ever. In a case of judicial 
punishment by a commissioner of a county court, before the 
punishment had been regulated by statute, a servant v^as 
v^hipped almost to death, and the passing of an act by the 
Assembly in 1662 prohibiting private burial of servants or 
others, because of the occasion thus given for " much scan- 
dall against divers persons and sometimes not undeservedly 
of being guilty of their deaths," shoves that sometimes the 
master abused his right of corporal punishment in an ex- 
treme degree/ The cruelty of some masters was sufificient 
towards the middle of the seventeenth century to interfere 
seriously with the importation of servants, and the Assembly 
in 1662 attempted to put a stop to it by giving the servant 
an easy remedy upon complaint to the commissioners for all 
his grievances. From this time forward harsh treatment may 
generally be considered as exceptional. Beverley says of the 
treatment of servants, " The cruelties and severities imputed 
to that country are an unjust reflection, no people more 
abhor the thought of such usage than the Virginians nor 
try more to prevent it now whatever it was in former days." 
This statement seems to be borne out by other contemporary 
authorities and by the records of the courts, which show that 
every safeguard was thrown around the servant, and that 
wherever the slightest pretext for freeing him appeared it 
was taken advantage of. Justice was readily accessible. 
Every few miles a justice might be found to whom com- 
plaint could be made, and the county courts, which met in 

prentice complained that his master made him work on Sunday 
and further misused him "by fastening a lock with a chain to 
it and tying and fettering him to the shoppe and that said 
master, his wife and mother did most cruelly and inhumanly 
beat his said apprentice and also whipped him till he was very 
bloody and his flesh rawe over a great part of his body, and 
then salted him and held him naked to the fire being so salted 
to add to his pain." 

^Acc. Rec, 80; Hening, II., 35, 53. In 1661 the Assembly con- 
firmed an order of the General Court forbidding a man and his 
wife " to keep any maid servant for the term of three years." 



78 White Servitude in the Colony of Virginia. [336^ 

the early times as often as necessity required, and later every 
month, redressed servants' grievances in a " summary " man- 
ner.^ 

A servant could legally sue for his freedom on retention 
in service after his contract had expired, or for his master's 
violation of the act of 1676 by attempting to make any con- 
tract with him to his damage, or upon purchase by negroes, 
mulattoes, Indians or infidels, or upon the intermarriage of 
any such person with his owner; but the courts going be- 
yond this in the discretionary power granted them by law, 
would free a servant for breach of the terms of indenture by 
the master, for breach of a contract to marry, for a second 
complaint of ill usage, and sometimes even upon a first com- 



^ Force, I., L. and R., 4; Hening, I., 435; II., 117, 118, 129, 488; 
Beverley, 219, 220, 222; cf. Bullock, Jones, Virginia's Cure, Leah 
and Rachel, pp. 11, 12, 15-17. John Hammond in 1659 warns 
servants against mariners, shipmasters and others who imported 
them merely for gain, and advises them to covenant for liberty, 
to choose their own master and a fortnight's time after their 
arrival in which to do so, " for ye cannot imagine," he says, 
" hut there are as well bad services as good but I shall shew ye 
if any happen into the hands of such crooked dispositions how 
to order them and ease yourselves when I come to treat of the 
justice of the country which by this they may prevent." From 
this traflfic in servants by middlemen it is evident that much 
deception and fraud might be practiced upon the unwitting, 
both before and after reaching Virginia. They were deceived 
in making their contracts by such general stipulations as for 
an allotment of land " according to the custom of the country," 
which was represented to them as being 50 acres, when no allot- 
ment to the servant was customary at all until after 1690. 
False indentures seem to have been made also, either through 
corruption in the registry office or by forgery, as a number of 
blank indentures, properly signed and sealed, were brought to 
the notice of the Assembly in 1680, and all judgment of their 
validity, when alleged, was lodged in the discretion of the jus- 
tices. The practice of selling men on shipboard to the highest 
bidder, or of consigning them to merchants at Jamestown or 
other ports for sale, might, of course, result very unhappily for 
servants, and during the voyage to Virginia they often suffered 
great hardships for want of clothes, bedding and diet. These 
were mild, however, compared to the " horrors of the middle 
passage " in the days of slavery. 



337] Indented Servitude. T^ 

plaint where no fault of the servant appeared. The number 
of such suits occurring both in the General and the county 
courts, and the fraudulent concealment of indentures, show 
a continual disposition on the part of the master to extend 
the servitude, though unjustly, for as long a period as pos- 
sible/ By the acts giving the master additions of time for 
the birth of a bastard child to his servant a premium was 
actually put upon immorality, and there appear to have been 
masters base enough to take advantage of it. This was re- 
strained by an act of 1662, which provided that the maid- 
servant should be sold away from her master in such cases 
and no compensation allowed him for the loss of her time. 
Complete freedom would probably have been granted but 
for the harmful effect on the servant herself.' 

The speedy rendering of justice to the servant through the 
special procedure provided in his case, and the unrestricted 
right of appeal to the higher courts, placed him in an excep- 
tional position. The fact that the law was interpreted in the 
most favorable light possible for the servant, and that no fear 
was ever entertained of a servile insurrection, except in the 
single case of the Gloucester plot of 1663, which was due to 
political rather than social reasons, may be regarded as con- 
firming the positive statements of contemporary writers as 
to the comparatively easy conditions of servitude during the 

^ Hening, II., 280, 388; III., 447; IV., 133; MS. Rec. Genl. Ct, 
159, 162, 166, 173, 204, 218, 238; Robinson MS., 2, 8, 256, 265; 
Gen. Ct., 154, 156, 158, 161; MS. Rec. Va. Co., III., 233, 292; Ace. 
Rec, 2; Essex Rec, 132; Henrico Rec, 85; Force, III., L. and R., 16. 
Verbal agreements were sometimes alleged, and where proven, 
or where the servant could not produce his indenture, they 
might be enforced. An indenture, however, was an effectual bar 
to any such agreement. 

= Hening, II., 167; III., 453; MS. Rec Genl. Ct., 8. The number 
of false pleas brought into court by servants to get a reduction 
of their time, and the offenses of which they appear to have 
been guilty, show that the master was more likely to be im- 
posed on than the servant. Genl. Ct., 8, 12, 15, 44, 47, 158, 188, 
1675, Oct. 2; Ace Rec, 85; Henrico Rec, 41; Robinson MS., 27. 



80 White Servitude in the Colony of Virginia. [338 



period of indented service. We may conclude that where 
the servant showed himself at all deserving his lot was in 
general very easy and frequently much better than he had 
ever before enjoyed.^ 



^Except in tlie early period and in 1777, the servant was free 
from the obligation of military service, and, as in the case of 
slaves, the lavr did not allow the sale of spirituous liquors to 
them. Hening, III., 400; VI., 74; VII., 93, 101; IX., 32, 81, 271, 
275, 592; Sparks' Washington, Vol. II., 168, 169. 



CHAPTER III. 

THE FREEDMAN. 

We have seen that by provisions of the statutes and 
under the practice of the courts a servant might legally ob- 
tain his freedom in several ways; the ordinary mode, how- 
ever, was on the expiration of the term of his contract. He 
might then claim a certificate of freedom, and with his title 
to liberty resting on this or on the records of a court, all his 
legal disabilities were at once removed and he became "as 
free in all respects and as much entitled to the liberties and 
privileges of the country as any of the inhabitants or 
natives."^ 

To determine the place and influence of the servant as a 
freedman in the very complex social and economic develop- 
ment of the colony is by no means an easy matter. Merged 
as he was in the general class of free men, such effects as 
were due to his presence were not easily distinguishable. 
The process itself was largely unconscious on the part of the 
people and but barely recorded in contemporary history. 
Little historic material has thus survived on which to base 
satisfactory conclusions. Enough remains, however, to give 
decisive proof of a very rapid evolution of servants when 
free, and to show that they did not continue as a class at all, 
and so could not have formed, as has been mistakenly sup- 
posed, the lowest stratum of Virginia society in the 
eighteenth century. The various classes that made up the 
society of colonial Virginia were separated from each other 
only by the broadest and most general distinctions,, and 
graded almost imperceptibly into one another. The law rec- 
ognized no distinction whatever except in the case of the 

^ Beverley, 220 sq. 



82 White Servitude in the Colony of Virginia. [340 ! 

twelve councillors. The class which stood at the head of j 

the social order and formed a kind of aristocracy was mainly j 

an outgrowth of the official class and of landed proprietors, :i 

who, having acquired wealth or large estates, had been able ,' 

to preserve them in their families for several generations i 

through the action of the law of entails. A number of j 

wealthy would-be aristocrats, without real culture and I 

refinement, together with the poor but proud younger sons | 

of the aristocrats, hung on to and aped the manners of the | 

class above them; but the solid middle class of independent j 

yeomanry, with plain and unpretentious manners, was far i 

more numerous, and even in the latter part of the eighteenth i 

century formed nearly half the population of the colony. | 

The lowest class of all is described by a contemporary as " a i 

seculum of beings called overseers, the most abject, de- j 

graded, unprincipled race.^'^ I 

The freed servants may in all justice be said to have re- i 

cruited all these classes at different periods during the con- ] 
tinuance of indented servitude, but toward the beginning 
and in the first years of the eighteenth century probably 

more largely that of the small independent planters or I 

laborers and the class of overseers. Though pride and | 

wealth generally acted to make the upper classes hold them- j 

selves aloof from the lower, the good-will and generous hos- ] 

pitality characteristic of all classes gave them all more or j 

less of a common life and freedom of association with each '\ 

other, and where those elements were present in any man j 
that would merit his rise he was not likely to be kept down . | 

by any false ideas due to caste sentiment. The rapidity with l 

which some freedmen rose to positions of trust and distinc- j 

tion is abundant proof of the opportunity which lay open to j 

all that possessed true desert. Many servants were besides { 

this of better origin and education than the generality of ; 

freemen, and were frequently employed in such respon- , 

i 

. ^ ,j, 

^Wirt, Life of Patricia Henry, 33, 36; Id., Britisli Spy, 192- I 

194; Anbury, Travels through the interior parts of America, '> 

London, 1789, 371-376. I 



341] The Freedman. 83 

sible positions as teachers, and many ministers were im- 
ported on conditions almost parallel to those of indented 
servants/ 

In the first half of the seventeenth century their rise to 
prominence was often very rapid. Several members of the 
Assembly of 1654 were men who had been servants, and in 
1662 we are told that "the Burgesses which represent the 
people . . . are usually such as went over servants thither," 
who "by time and industry . . . have acquired competent 
estates."" Intermarriage of free persons and servants was 
very common. Masters sometimes bought female servants 
for their wives, and it was not uncommon for men-servants 
to marry into their masters' families when they gained their 
freedom.' No impassible social barrier thus seems to have 

^ Col. William Preston, of Smithville, Va., bought at Williams- 
burg, about 1776, a gentleman named Palfrenan, as a teacher 
for his family; he was a poet and a scholar, a correspondent 
and a friend of the celebrated Miss Carter, the poetess, and also 
of Dr. Saml. Johnson. This man educated many of the Prestons 
and Breckenridges in Virginia and Arkansas. The distinguished 
Wm. G. Preston of S. G. was one of his pupils. Richmond 
Standard, June 9, 1880, Letter of Mrs. Floyd; Va. Hist. Mag., 
Oct., 1894, p. 236, Will of Col. John Carter (1669). 

2 Neill, Va. Car. 279, 290; Force, III., Virginia's Cure, 16; Howe, 
207. Peter Francisco, a Revolutionary soldier celebrated for his 
personal strength, had been an indented servant for seven years. 
" He was a companionable man and an ever welcome visitor in 
the first families in this region of the state," says a contem- 
porary living in Buckingham County. Cf. " A Declaration," etc., 
4, 57; York Rec, 1633-34; Rob. MS., 52; Col. MS., 17. 

«Rob. MS., June 3, 1640; Wm. Byrd's Letters, June 9, 1691; 
Bullock, 52 sq. Bullock advises English fathers to send their 
daughters to Virginia rather than their sons, and promises that 
they " will receive instead of give portions for them." " Maid 
servants," he says, " of good honest stock may choose their hus- 
bands out of the better sort of people. Have sent over many 
but never could keep one at my plantation three months except 
a poor filly wench made fit to follle to set of beauty and yet 
a proper young fellow served twelve months for her." He tells 
men-servants how they may prosper by their service and lay up 
a competence, " and then," he says, " if he look to God, he 
may see himself fit to wed a good man's daughter." Bullock 
was a Yorkshireman and had had seven years' experience in 
Virginia when he wrote in 1649. Cf. McDonald, II., 68. 



84 White Servitude in the Colony of Virginia, [342 ] 

existed, nor were opportunities lacking for the material im- ] 

provement of the servant. To better his fortune when out ] 

of indenture at least two courses were open to him. He | 

might remain with his master or some other person as a | 

hired man or tenant upon his lands, or he might become an j 

independent planter by taking up whatever unoccupied land J 

in the community had proved too barren to be already pat- | 

ented by freemen, or by moving to the frontier where abund- | 

ance of good land was to be had on the easiest terms. i 

There was a constant demand for labor, both agricultural ' 

and mechanical, throughout the colonial period, a demand i 

satisfied neither by the indented servants nor by the large j 

importations of slaves. The wages of hired labor were con- j 

sequently always high, particularly those of artisans or J 

tradesmen of the slightest capacity. Freedmen who were I 

content to become members of the laboring class had abund- 'f 

ant opportunity and inducement to do so. Until domestic ] 
manufacturers were checked by the repressive measures of 

the English Board of Trade, considerable encouragement \ 

was given to skilled workmen to exercise their crafts or to j 

establish themselves in an independent position. When the I 

profits of tobacco-planting increased, however, this industry | 

probably absorbed a large number of freedmen, as very fav- ] 

orable conditions of tenantship were offered on the great j 

estates, where men usually held on what constituted practi- 1 

cally a life tenure. The disposition to become a freeholder, j 

however, particularly after the servant enjoyed a claim to I 
land in his own right, was most marked of all.^ In the " i 

^ Ace. Rec, 36, 37, 42; Va. MS. B. R. O., V., pt. 2, pp. 302, 317, 336, \ 
386, Nov. 11, 1708, Nov. 29, 1728; Robinson MS., 180; Bullock, 62 sq.; j 
Beverley, 225; Hening, I., 208, 301; II., 172, 472, 503; III., 16, 30, i 
50, 53, 75, 81, 108, 121, 187, 197. Large importations of craftsmen ■ 
had been made by the planters without satisfying their needs, [ 
and men were specially encouraged to remain in the employ of ; 
their former masters or to serve the community in their trade. ; 
Many servants received in addition to their transportation j 
and support, wages equal to those paid the best servants in Eng- 
land. Though the colony was chiefly agricultural in character < 



343] The Freedman. 85 

earlier times, though the person importing him could claim 
fifty acres for his importation, the servant does not appear 
to have been legally entitled to any grant of land from the 
government. A grant was frequently stipulated in the con- 
tract with a master, and became also in some places a cus- 
tom, which like freedom dues was recognized by the courts. 
In 1690 the instructions to Governor Howard directed that 
every servant receive a patent of fifty acres in fee on attain- 
ing his freedom, and it is probable that henceforth he was 
regarded as having a legal claim to such a grant. Before 
this the rules for leasing or patenting lands in many cases 
allowed him to acquire the tenancy of small tracts at a nomi- 
nal rent, and lands were also left with other bequests to ser- 



and dependent on England for many of the ordinary articles 
of manufacture well into the eighteenth century, it is a great 
mistake to suppose that no manufacturing or attempts to build 
up trade appeared in Virginia. The fact that attempts were 
not largely successful was due not to domestic causes alone, but 
to the policy of the English Board of Trade, whose interest it 
was to keep Virginia agricultural for the benefit resulting to 
English commerce. The repeated efforts of the Assemblies to 
develop manufactures and to crush out the slave trade were 
defeated in England rather than in Virginia. In the late shears 
of the seventeenth century and early years of the eighteenth, 
the difficulty of obtaining goods from England and the low price 
of tobacco gave the planters excuse for establishing consider- 
able manufactories on their plantations; cotton, woolen and linen 
goods were made, and shoemaking and tanning were undertaken 
on a somewhat large scale. These industries grew to such an 
extent that great fear was aroused among English merchants of 
the loss of a very profitable part of their trade. The letters of 
the Lords of Trade are full of questions in regard to this new 
departure, and of recommendations and instructions to discour- 
age it as much as possible. In 1707 as many as four counties 
on the south side of James river were given over to the pro- 
duction and manufacture of such goods, and a considerable 
trade had sprung up with New England and the islands. The 
Lords recommended the Queen the next year, from fear of a 
great loss to her revenues, to appoint a fleet and a convoy to 
sail from England every year with all such commodities as the 
planters needed, to prevent their applying their labor to any 
other product than tobacco. Exports of corn, pork and " great 
cattle " were made from Virginia to New England as early as 
1639. Rob. MS., 180. 



86 White Servitude in the Colony of Virginia, [344 

vants in their masters' wills."^ The practice of the sale of 
rights to land due for the importation of people, to the col- 
ony, both by the holders of them and by the secretary, for 
the small sum of four or five shillings, and the modes of 
granting out lapsed and escheated lands, made it a very easy 
matter in later times for the servant to become the pro- 
prietor of landed property^ in the old settled communities, 

^Va. MSS. B. R. O., 318; Ibid., II., pt. I., 81 (1698); Henrico 
Kec, 36; Hening, I., 161, 209; Rob. MS., 57, 61. In 1626 much of 
the common land that had belonged to the London Co. was 
leased to the large number of tenants and servants, then freed, 
in such quantity and for such a number of years as seemed 
necessary, at the yearly rent of one pound of tobacco per acre. 
Cf. McD. MS., I., 295. 

2 Beverley, 220, 226, 227; MS. Rec. Va. Co., III., 219; Va. MSS. 
B. R. O., 335, 342; Hening, I., 125, 173, 197, 291, 468; Virginia's 
Deplorable Condition, 164. Titles to land in the first instance 
rested on patents granted for special services, for consideration, or 
for the importation of persons to the colony as settlers. A condi- 
tion of ceding the land within a limited period after the patent's 
issue accompanied such grants comparatively early. Where this 
condition was not fulfilled the land lapsed and a new patent 
might be issued to any one petitioning the General Court and 
the Governor, on similar terms, the theory being that land grants 
were made to encourage settlers only. Seattug involved consid- 
erable expense for improvements, the building of a house, clear- 
ing and planting three acres of every fifty, and a full stocking 
of the land. All this was more than the patentee to large tracts 
could undertake. It was not an uncommon thing for the right 
to land to lapse several times over, unless it could be disposed 
of by sale. The sale of rights became thus as general as the 
sale of the land itself, and they were readily purchasable for 
very small sums. After 1705, fifty-acre rights, according to the 
Royal Instructions, could be bought at five shillings per right 
Escheated lands also, where the escheat was not traversed and 
no equitable right was shown to the lands, could be easily 
obtained on petition to the Governor by payment into the treas- 
ury of a composition of two pounds of tobacco for each acre. 
In the early years, however, no time limit was imposed upon 
the seating of lands, and the abuse of land-grabbing, which had 
begun almost immediately on the general introduction of prop- 
erty in the soil in 1619, had had sufficient time to result in the 
concentration of all the best lands along the river-courses in 
the hands of comparatively few persons. This was facilitated 
by the ownership or the buying up of large numbers of fifty- 
acre claims, called " head rights," for the importation of set- 



345] The Freedman. 87 

and when good land could not be obtained in this way there 
was always room for him on the frontier. Though much of 
the frontier land was patented out in large tracts, to lie un- 
settled for a time, it was gradually broken up into small 
ones and disposed of by the owners to squatters and settlers, 
so that the Piedmont and western parts of Virginia became 
characterized by farms of moderate extent rather than by 
large plantations as in Eastern Virginia.^ 

The growth of this class of small farmers was effective in 
developing over a large portion of the State a very strong 
type of peasant proprietorship, and sufficiently shows that 
the servant was under no necessity of becoming either a 
pauper or a criminal. That he did to some extent recruit 
these classes is what might naturally be expected from the 
introduction of English convicts as servants, and after they 
came in some numbers we have indications that they were 
rcj'sponsible for much of the crime committed ; but pauperism 
in Virginia before the first quarter of the eighteenth century 
was almost unknown.* 



tiers. Claims were admitted for the members of a man's family, 
himself as well as his wife, children, and all servants imported 
at his charge, and even for the negroes brought in (this latter 
kind was soon denied). Corrupt practices prevailed also in the 
oflSces issuing the grants, head rights were used many times 
over, and rights could be purchased of the secretary at three 
to four shillings, or even a half-crown. In this way large tracts 
came into the possession of a few men, to lie mostly barren and 
uncultivated unless tenanted. Tracts of 20,000, 30,000 and 50,000 
acres existed of which not fifty were under cultivation. When 
the two new counties of Spottsylvania and Brunswick were set 
apart during Spottswood's government, with an exemption from 
quit-rents for several years, Spottswood himself was accused of 
taking 40,000 acres. 

^Hening, IX., 226; Va. MS. B. R. O., May 31, 1721, Spotts- 
wood to Lords of Trade; Spottswood's Letters, II., 227. The 
abolition of the system of entails, which had been stricter in 
Virginia since 1705 than even that of England, was a further 
step in this process after 1776 in eastern Virginia also. Spotts- 
wood, writing in 1717, says that frontiersmen were generally 
of the servant class. 

=» Beverley, 223, 258; Jefferson, Works, IX., 255; Jones, 116 sq. 
The convict class was probably never at any one time very 



88 White Servitude in the Colony of Virginia. [346 

Under the stimulus of regained freedom and the abundant 
opportunity afforded for individual endeavor, the freed ser- 
vant may in general be regarded as growing up with the 
country, as becoming an independent and often valued citi- 
zen, and materially aiding in the development of the re- 
sources of the colony. Trained by his long apprenticeship 
in the best practices of agriculture or of his trade, and thor- 
oughly acclimated, he was better able than a new-comer to 
take a place profitably both to himself and to the public in 
the social and political order. 

large in Virginia, as their importation was discountenanced and 
every effort made to stop it. Beverley speaks of Virginia as " the 
best poor man's country in the world— hut as they have nobody 
poor to beggary so they have few that are rich— few ask alms 
or need them." A testator left five pounds to the poor of his 
parish, but it was nine years before the executors could find 
a person poor enough to accept the gift. Where the poor ex- 
isted, provision was made for them in some planter's family at 
the public charge. 



CONCLUSIONS. 

From what has been said the importance of the system of 
white servitude in colonial development is apparent. Such 
effects as were due to it were to some extent obscured by the 
institution of slavery, which, existing for some time along- 
side the earlier system and finally supplanting it, either 
greatly counteracted or enhanced its influence. Yet it is 
possible to make some general deductions as to the social 
and economic results which followed its introduction into 
the American colonies. Its superiority to a system of per- 
fectly free labor under colonial conditions could not be 
doubted if it were certain to lead to the development of a 
class of independent freeholders. The benefit to production 
to be derived from long and certain terms of service with 
contract labor was sufficiently shown in the experience of 
contemporay England. We can see how advantageously 
such an extension of the time and certainty of labor supply 
as was involved in indented servitude, together with the 
power of control by the master and the economy of provid- 
ing for large numbers of servants together, would work in a 
new and sparsely settled country whose industry was chiefly 
agricultural and dependent for success on a foreign trade 
and consequently on the efficient management of large 
landed estates by a capitalist class.^ Some form of cheap 
labor was a necessity; the slavery of Christians and white 

^ In Virginia and Maryland the existence of sucli a staple as 
tobacco, which could only be produced profitably on a large 
scale and constantly required large quantities of new land, made 
such a development certain from the first. Tobacco was intro- 
duced into Virginia in 1616 and almost immediately became the 
staple product. The ready adoption of the system in the New 
England colonies, where such conditions did not exist, however, 
shows its industrial efficiency. 



90 White Servitude in the Colony of Virginia, [348 

men was naturally abhorrent, that of Indians impracticable 
on a large scale, and negro slavery was comparatively slow 
in becoming an object of desire to the Virginia planters. 
The gradual and tentative development in practice of in- 
dented servitude from what at first was theoretically but a 
modification of free contract labor clearly shows its recog- 
nized economic superiority to such a system as existed in 
England. Designed not only as a labor supply, but as an 
immigration agency, it had generally the effect of an indus- 
trial apprenticeship, greatly strengthening the position of 
the capitalist employer and developing a class of industrially 
efficient free men. It supplied the entire force of skilled and 
domestic labor of the colony for more than half a century, 
and continued, after slavery as a general labor supply had 
supplanted it, to be the source of all high-grade labor well 
into the eighteenth century. It provided for the growth of 
a strong yeomanry during the seventeenth and eighteenth 
centuries, preventing a complete absorption of the land into 
large estates ; and in furnishing a great number of independ- 
ent settlers and citizens, particularly for the back territory, it 
had a most marked effect on the political as well as the eco- 
nomic development of the country.^ 

The moral influence of the system cannot in general be 
said to have been good. The tendency was to harden the 
master's feeling towards servitude and to prepare him for a 
more ready adoption of slavery, and the introduction of un- 
desirable classes into a society already lax in habit was not 
likely to improve the moral tone or the social welfare of the 
colony.' 

^By the temporary disfranchisement of the servant during his 
term, common after the middle of the seventeenth century, a 
serious public danger was avoided. There could be no guarantee 
of the judicious exercise of the suffrage with this class who, 
for the most part, had never enjoyed the privilege before. Their 
servitude may be regarded as preparing them for a proper ap- 
preciation of suffrage when obtained, and the duties of citizen- 
ship. In the later days of public improvement and town-build- 
ing, the imported craftsmen were a valuable class. 

^Spottswood Letters, II., 227. 



349] Conclusions. 91 

In comparison with the institution of negro slavery, the 
superiority of white servitude for social and moral consid- 
erations seems to have been recognized by the Virginia 
planters, but from a purely economic point of view its infe- 
riority was fully apparent, and from the first considerable 
importation of negro slaves the ultimate destruction of the 
system was easily foreseen. The slowness with which negro 
slavery was adopted shows a conscious effort on the part of 
Virginia, so long as it was permitted to act freely, to resist 
the encroachment upon servitude. At the same time that 
English policy was forcing^ slavery upon the colony it cut 

^ It is a significant fact that the first negroes were brought 
to Virginia in 1619, the same year in which the principles of 
indented servitude may be said to have been fully developed, 
and yet forty years later there were but three hundred negroes 
in the colony. From 1664 to 1671 several shiploads of negroes 
were brought in, and there were two thousand slaves and six 
thousand servants in Virginia. By 1683 the number of servants 
was nearly doubled, according to Culpepper, while the negroes 
numbered only three thousand. (Hening, II., 515; Culpepper's 
report, Doyle, 383.) From this time servitude gave way before 
slavery, forced on the colonies by the large importation of ne- 
groes by the Royal African Co. under its exclusive charter. It 
was the policy also of the King and the Duke of York, who 
stood at the head of the African Co., to hasten the adoption of 
slavery by enactments cutting off the supply of indented serv- 
ants. In 1698 the African trade was thrown open to separate 
traders, and an active competition at once sprang up between 
them and the African Co., the separate traders making large 
importations and underselling the Company. Though a law of 
1660 gave practical encouragement to the importation of negroes 
by the Dutch, the colonists had become sufficiently aware of 
the dangers of slavery in 1699 to lay a discriminating duty upon 
them for three years, and upon alien servants in favor of the 
Welsh and English born. The act was continued in 1701, allow- 
ing a rebate of three-fourths the duty where the negroes were 
transported out of the Dominion within six weeks. The duty 
was continued by the acts of 1704 and 1705 where the duty was 
laid simply upon " negroes or other slaves." The excuse of 
revenue was alleged, and brief limitations given to the acts in 
order to secure their confirmation in England, but the slave 
traders readily saw that the design was to lay prohibitive duties, 
and they secured the withholding of the King's assent to as 
many as thirty-three different acts passed by the Virginia As- 



92 White Servitude in the Colony of Virginia. [350 

off the supply of indented servants, and the decHne of the 
system after the last quarter of the seventeenth century was 
very rapid. The final extinction of indented servitude in 
Virginia did not take place till some time after the close of 
the Revolutionary War; as late as 1774 there was still some 
demand for servants/ and the importation of convicts was 
not finally prohibited until 1788. The real efficiency of the 
system, however, had ceased long before. Even in the late 
years of the seventeenth century negro slaves were more in 
demand for supplying old plantations or beginning new ones 
than servants, and where a demand existed for white ser- 
vants it was for artisans and apprentices, and large prices 
had to be paid to get good ones."" White servitude survived 
after the downfall of the system in an apprenticeship of do- 
mestic growth, originating in the binding of poor or bas- 
tard children for a term of years for their instruction and to 
save the parish the expense of their support; but this had no 
historic connection with the apprenticeship which constituted 
a part of indented servitude, and itself finally passed away 
under the regime of perfectly free labor. 

The experience of Virginia was largely repeated in the 
other colonies, and the general effects of the system were 

sembly to discourage tlie slave trade. (Hening, I., 540; III., 193, 
213, 225, 229, 233; Tucker's Blackstone, I., Appd., 51; Minor, 
Inst., I., 164). The importation of negroes, however, coufd not 
be checked, and the chief advantage Virginia reaped from these 
acts was a large revenue for her public works. In 1705 the 
number of 1800 negroes was brought in, and in 1708 there were 
12,000 negro tithables compared with 18,000 white, while the 
revenue from white servants was too inconsiderable to deserve 
notice. (Va. MS. B. R. O., Nov. 27, 1708, Jennings to Lds. of 
Trade.) Intended insurrections of negroes in 1710, 1722, 1730, 
bear witness to their alarming increase, and by the middle of 
the century the blacks were almost as numerous as the whites. 
Va. MSS. B. R. O., V., pt. 2, p. 352; II., pt. I., 211; 1708, Nov. 
21; 1710, June 10; 1712, July 26; 1722, Dec. 22; Burke, 210; Oal. 
Va. State Papers, I, 129, 130. 

^Ford's Washington, II., 408, note. 

^Fitzhugh, Letters, Jan. 30, 1686-87, 1686, Aug. 15, 1690; Wm. 
Byrd's Letters, Feb. 25, 1683, June 21, 1864, Mar. 29, 1685, 1686, 
May, June, Nov. 



351] Conclusions. 93 

much the same in all. The influence on internal develop- 
ment was even more clearly marked in Maryland and Penn- 
sylvania than in Virginia. In Pennsylvania the large num- 
ber of German settlers who came in this way, driven from 
home by religious or political persecution, became the most 
valued of citizens.^ The rise and influence of the freedman 
in Maryland was as perceptible as in Virginia. Though 
that colony was unfortunate in receiving a larger number of 
the convict class, very few of them seem to have remained 
in the country on attaining their freedom, but returned to 
Europe or migrated to distant settlements.^ In the other 
southern and middle colonies and in New England servants 
were not numerically so large a class, and their rise and ab- 
sorption into the higher classes became from social and 
political reasons even more easy than in Virginia and Mary- 
land.^ 

The actual conditions of servitude varied somewhat in the 
different colonies, assuming in some respects a harsher, in 
others a milder character than we have seen in Virginia. 
Thus in Massachusetts the elective franchise seems to have 
been exercised by servants only up to the year 1636, and the 
qualification of church membership was required of all voters 
to 1664. In Virginia the " inhabitants " voted for burgesses 
until 1646, and until 1670 the freed servant enjoyed the suf- 
frage along with other free men, there being no property 
or other qualification." The terms of servitude also in many 

^ Kalm, Travels, I., 29, 388, 390. They were frequently in good 
circumstances, and sold themselves to learn the language or 
methods of agriculture. 

^ Gambrall's Colonial Life of Maryland, 165, and NeilFs Found- 
ers, 77, quoted in Brackett, Negro in Md.; Eddis, Letters, 63, 66, 
67. 

^Plymouth Col. Laws, VIIL, pt. IIL, 34, 35, 47, 58, 61, 65, 81, 
140, 195. 

*Hurd, I., 254 sq.; Bancroft, I., 322; Conn. Rev. S., 40; Hening, 
I., 300, 334, 403, 411, 475; II., 82, 280, 356, 380; Col. Rec. Va. 
Assemb., 1619. Hurd, I., pp. 228-311, gives a valuable abstract 
of all laws relating to bondage in the colonies. 



94 White Servitude in the Colony of Virginia. [352 

of the colonies were longer than in Virginia. In Mary- 
land the common term seems to have been five years. Seven- 
year terms were frequent in Massachusetts, and in Rhode 
Island even ten. Provision was taken for the strict en- 
forcement of the full term, and enfranchisement was not en- 
couraged. Additions of time, corporal punishment, limita- 
tion of the rights of trade and free marriage, and provisions 
for the capture and return of runaways, were much the same.^ 
Greater numbers of Indian and mulatto servants seem to 
have been made use of in New England than in the other 
colonies, though the importation of white servants was speci- 
ally encouraged by the enactments against Indian slave-trad- 
ing. Georgia; and the Carolinas also encouraged the impor- 
tation of servants of the better class, while the colonies in 
general made an attempt to protect themselves against con- 
victs and servants of undesirable classes, as Irish Papists and 
aliens.^ 

The wide prevalence of the system, not only in the Ameri- 
can but in the island plantations of England, had a most 
important bearing on the social economy of Great Britain 
and of other European countries, similar in a less degree to 
the efifect of the large European emigration of the present 
day. Not only were many of the evils of a congested popu- 
lation lessened, but elements of the greatest social and politi- 
cal danger were effectively gotten rid of by forced transpor- 
tation.' The effect on England of the removal of large num- 

^ Eddis, 63; Hurd, I., 271 sq., 309, 310; Pa. Laws, 1700-1, 13 sq., 
230, 552. 

^Hurd, L, 271 sq. 

' 4 Geo., e. 11; 6 Geo. III., c. 32; 8 Geo. III., c. 15; 19 Geo. III., c. 
14; Prendergast, 52, 53, 163, note; Carlyle's Cromwell, II., 457; 
Neill, Va. Vet., 102, 103. As the Stuarts systematically encouraged 
the deportation of troublesome persons and petty criminals to 
the American colonies, so Oliver Cromwell in preparing for his 
settlement of Ireland did not hesitate to transport large num- 
bers of the dispossessed Irish as slaves to the West Indies, 
or as servants to the English plantations in America, nor to 
sell the survivors of the Drogheda massacre as slaves to 
Barbadoes. Until stopped by the War of the Revolution, the 



353] Conclusions, 95 

bers of political and social offenders was wholly beneficial; 
and though many of the emigrants from the Continent were 
religious or political refugees, a great number were also 
from the poorer classes, and their withdrawal was a consid- 
erable economic relief. 

In conclusion an important political effect on the Ameri- 
can colonies should be noted. The infusion of such large 
numbers of the lower and middle classes into colonial society 
could only result in a marked increase of democratic senti- 
ment, which, together with a spirit of rebellion against the 
unjust importation of convicts and slaves, increased under 
British tyranny the growing restlessness which finally led 
to the separation of the colonies from the mother country ."^ 

penal statutes of the Georges continued to send the felons of 
Scotland and England to the American colonies. (Of. DeFoe, 
" Moll Flanders " (1686) and " Captain Jack.") Large numbers 
of servants were brought into Maryland and Pennsylvania from 
Germany, Switzerland and Holland. They were generally known 
as '* Redemptioners," from redeeming their pei'sons from the 
power of the shipmaster who transported them, usually by a 
voluntary sale into servitude. The system continued in active 
operation in Maryland well up to the year 1819. Of. Laws, Feb. 
16, 1818. 

^ Franklin, Works (Bigelow ed.), IV., 108, 254. Jefferson, Works 
(Ford ed.), n., 11, 52, 53. 



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Reeves, J. History of the English Law. 5 v. (Finlason Ed.) 
1880. 

Richmond Standard. Richmond, Va. 1880. 

Royal Commission on Historical Manuscripts, Reports of the. 
8 v. London, 1870-81. 

Smith, Capt. John. General History. 2 v. 8vo. Richmond, 
1819. Works, 1608-31; ed. by Arber. 1 v. 8vo. Birming- 
ham, 1884. 

Spottswood, Gov. Alexander. Official Letters of. 2 v. Va. Hist. 
Coll., N. S., ed. by R. A. Brock, 1882. 

Statutes at Large of England and Great Britain. 20 v. London, 
1811. 

Statutes at Large of Virginia, 1792—. 

Stevens, Henry. Dawn of British Trade (Court Minutes of the 
East India Co., 1599-1603). 8vo. London, 1886. 

Stith, Wm. History of the Discovery and Settlement of Virginia 
to 1624. (Sabin, J., Reprints.) N. Y. 1865. 

Strachey, W. Historic of Travaile into Virginia Britannia. Ed. 
by Major. Hakluyt Society. Vol. 6. 1849. Lawes Divine, 
Morall and Martial, 1612—. (Force, vol. III.) 

Surtees Society, Publications of the. 84 v. 8vo. London, 1835- 
89. 

Taswell-Langmead, T. P. English Constitutional History. 4th 
ed. London, 1890. 

Thurloe, John. Collections of State Papers; ed. by T. Birch. 7 v. 
London, 1742. 

Tucker, St. George. Commentaries on Blackstone. 2 v. Rich- 
mond. 



357] Bibliography, 99 

Verney Family Papers; ed. by J. Bruce. No. 56 Camden Soc. 

Pub., 1866. 
Virginia, Colonial Records of (1619-80). State Senate Doc. 4to. 

Declaration of the State of the Colony of. London, 1620. 

New Description of, 1649. (Force, II.) 

Historical Magazine. 2 v. Ed. by P. A. Bruce. Richmond, 

1893-4. 
Historical Register; ed. by Wm. Maxwell. 6 v. Richmond, 

1848. 
Historical Society, Collections of. 10 v. Ed. by R. A. Brock. 

Richmond, 1882-91. 
Present State, 1696. Blair, Chilton & Hartwell. London, 

1727. 
Virginia Company, MS. Records of the. (a) Collingwood MS. 
2 V. fo. V. I. April 28, 1619-May 8, 1622; v. H. May 20, 1622- 
June 7, 1624. (b) Randolph MS. 2 v. fo. Ibid. 1 v. fo. Mis- 
cellaneous (1617—). 
Washington, George. Writings of. Ed. by W. C. Ford. 9 v. N. 

Y. 1889. 

Ibid. Ed. by Jared Sparks. 12 v. Boston. 

Whitaker, Alexander. Good Newes from Virginia. London, 1613. 
Williams, E. Virginia Truly Valued. London, 1650. 
Winder MS. 2 v. fo. 1606-76. (State Library, Richmond, Va.) 
Wirt, William. Life of Patrick Henry. Philadelphia, 1817. 

The Letters of the British Spy. N. Y. 1832. 

York County Records, MS., 1633-1709. 10 v. fo. State Library, 
Richmond, Va. 



VIII 



THE GENESIS OF CALIFORNIA'S FIRST 

CONSTITUTION (1846-49) 



JOHNS HOPKINS DNIVERSITY STDDIBS 

IN 

HiSTOKICAL AISTD POLITICAL SCIENCE 
HERBERT B. ADAMS, Editor 



History is Past Politics and Politics are Present History— ifJ-ecmon 



THIRTEENTH SERIES 
VIII 

THE GENESIS OF CALIFORNIA'S FIRST 
CONSTITUTION (1846-49) 

By ROCKWELL DENKIS HUNT, A. M. 

Professor Elect of History and Political Science^ University of the Pacific 



I 



BALTIMORE 

The Johns Hopkins Peess 

published monthly 

AUGUST, 1895. 



Copyright, 1895, by The Johns Hopkins Press. 



JOHN MURPHY & CO., PRINTERS, 
BALTIMORE. 



PREFATORY NOTE, 



This work is primarily a study in local constitution making. 
The vital relations to the whole country of many of the questions 
involved, however, have compelled attention to the national 
import of events and conditions having otherwise only provincial 
scope. The present study represents a more comprehensive mono- 
graph including a detailed account of the " Legal Status of Cali- 
fornia" from the American conquest to the adoption of the 
Constitution, which will perhaps appear in another connection. 
I am aware that there is a vast amount of literature on the early 
American history of California, and recognize the direct or indirect 
value of almost all of it : but comparatively little of it all is other 
than personal or merely popular, while much abounds with error. 
In studying existent constitutional conditions I have endeavored, 
following the excellent advice of Hon. Horace Davis, to " get into 
the feeling of the people : " in this endeavor contemporaneous 
literature, often wholly unscientific, has been of assistance. In 
presenting this work to the public I desire to make acknowledg- 
ments for suggestion or assistance to Hon. Horace Davis and Mr. 
T. H. Hittell, of San Francisco, W. J. Davis, Esq., of Sacramento, 
General John Bidwell (pioneer of '41), of Chico, and Professor 
H. B. Adams, of Baltimore; also to the several pioneers with 
whom I have conversed, especially Dr. Benj. Shurtleff and Mr, G. 
N. Cornwell, of Napa, California, Mr. Joseph Sims, of Sacra- 
mento, and Mr. J. L. Stieff, of Baltimore. 

5 



" O California, prodigal of gold, 
Kich in the treasures of a wealth untold, 
Not in thy bosom's secret store alone 
Is all the wonder of thy greatness shown. 
Within thy confines, happily combined, 
The wealth of nature and the might of mind, 
A wisdom eminent, a virtue sage, 
Give loftier spirit to a sordid age." 

— Title page California Notes, by C. B. Turrill, 



CONTENTS 



P: 



Chapter T. — Introduction : 

PAGE. 

Slight Tenure of Mexico 9 

Desire of Nations 9 

Episode in Mexican War 9 

Polk's Measures 10 

Sentiment of Hispano-Californians 10 

National Importance of Conquest , 11 

Question of Slavery Extension 11 

Local Eeasons against Slavery , 12 

Acquiescence of Californians 13 

Unique Conditions after Gold Discovery » 14 

Desire to enter the Union 14 

Chapter II. — Desire for Organized Government, and Congres- 
sional Failure: 

The Conquerors of California 15 

Extension of American Principles, and early Desire for Govern- 
ment 16 

Mexican Law imperfectly perpetuated 17 

Military Kule Unwelcome 18 

Stockton succeeded by Kearny , 20 

Congress adjourns March 3, 1847 21 

Settlers more clamorous under Mason 21 

Gold Discovery increases need of Government 24 

Movement towards Popular Provisional Government 25 

San Francisco Legislative Assembly 27 

General Kiley becomes de facto Governor 27 

Contest in Congress 28 

Eiley's Call for Convention, and Popular Acquiescence 29 

Why the Desire ? Its Intensity ; and Continuity 30 

The Convention as an Evidence 33 

7 



8 Contents. [366 

Chapter III. — The Constitutional Convention : 

PAGE. 

Kiley's Proclamation 34 

Election of Delegates 35 

Organization of the Convention. 35 

Semple Strikes the Keynote 36 

A Unique Constitutional Convention 36 

Personnel in General 36 

Difficulties and Embarrassments 36 

Importance of the Task 38 

The Hispano-Califomians 38 

Workers in the Convention 39 

First Session Opened with Prayer 40 

State Constitution, or Territorial Organization?,. 41 

The Declaration of Rights 42 

Question of Free Negroes 42 

Corporations 43 

Taxation 44 

The Wife's Separate Property 44 

Education 45 

Judiciary 45 

Boundary ; Main Issue ; A Minor Controversy ; Bearing of Slavery 

Question; The Constitution Endangered 46 

Other Debated Sections 50 

The Great Seal of the State 51 

Chapter IV. — The Constitution Completed : 

Social Interest and Harmony 52 

Compensation of Delegates and Officers 52 

Signing the Constitution 53 

General Riley Visited by the Convention 54 

Precedents of the Constitution.... 55 

Influence of Iowa and New York 55 

High Order of Skill required 56 

The Achievement 57 

Salient Features 57 

Estimates of the Work 57 

Bibliography 58 



THE GENESIS OF CALIFORNIA'S FIRST 
CONSTITUTION (1846-49). 



CHAPTEE I. 

Introductiok. 

The tenure by which the province of California was held 
to Mexico before the American conquest of the former was 
very slight. This fact afforded the greater temptation to 
other nations to obtain possession of this vast and desirable 
territory. Doubtless France and England, and perhaps 
Russia, had hopes of securing the prize. The government 
of the United States, also, ever since the explorations of 
Lewis and Clark in 1804, kept a jealous watch of the con- 
cerns of California. Whatever may have been the designs 
of interested nations, " California lay in the path of Ameri- 
can empire/' and the Monroe Doctrine stood as a menace to 
European aggression.^ 

The acquisition of the province of California by the United 
States was an act in the drama of the war with Mexico. It 
was a political act whose national import was fraught with 
tremendous significance. The dangerous, if not wholly uncon- 
stitutional,^ policy of forcible annexation was begun by Andrew 

1 Cf. Willey, Thirty Years in Gal, pp. 5-6 ; Schouler, Kut., IV, 446. 

^Mr. Jones, in Convention, declared: "A clear and plain clause of the 
[U. S.] Constitution, and the whole spirit of the Constitution, and the 
whole spirit of the Government of the United States, were violated when 
Texas was acquired, and when this country was conquered." Browne's 
Debates in Cal. Convention^ p. 101. 

9 



10 The Genesis of California's First Constitution. [368 

Jackson in his scheme for Texas.^ While war was pending 
with Mexico, the province of California was being jealously 
watched. San Francisco bay, as the President stated, seemed 
most desirable for our commerce ; and Mexico was unsuccess- 
fully urged to sell her western territory lying north of the 
thirty-seventh parallel.^ In the fall of 1842, Commodore 
Jones, who had been cruising on the South American coast of 
the Pacific, was led to believe that Mexico had declared war 
on the United States. Forthwith he sailed to Monterey and 
astounded the commandant there by demanding immediate 
surrender. The conquest was premature. Scarcely had Com- 
modore Jones issued his proclamation to the Californians 
announcing the conquest of the province, when he received 
advices convincing him of his error : thus he was compelled 
to restore the town to its former possessors, and to retire, 
with such grace as the circumstances would admit, to his 
ships.^ Mexico naturally took alarm at this unseasonable 
occurrence. 

Polk entered upon his administration with four great 
measures clearly set before him, one of which was the acquisi- 
tion of California.^ His first hope was to buy the province, 
but in any case its acquisition was firmly fixed in the Presi- 
dent's purpose.^ 

In the meantime, the native Californians were far from 
content with the feeble yet despotic Mexican rule. The 
more intelligent of them foresaw that there must soon be 
some change of flags in their country, and General Vallejo 
headed a party who were for an independent republic, with 
the ultimate design of entering the American Union. ^ British 
interest and interference made it easily appear to American 



1 Of. Schouler, IV, 247. ^ jf,^^^^ jy^ 253. 

^Greenhow, Hist. Oregon and Cal., 367-8. 

* Letter of Geo. Bancroft to Schouler, quoted in Schouler, IV, 498. 

* Of. Schouler, IV, 534. 

' Willey, Thirty Years, pp. 6-7 ; cf. Shuck, Representative Men of Padfie, 
p. 229. 



369] Introduction. 11 

officials as well as to native born Californians that England 
entertained serious intentions of securing possession of that 
territory, and served greatly to stimulate American aggres- 
sion. The several hundreds of American immigrants stood 
ready to welcome and assist aggressions on the part of the 
United States. 

The Mexican war was begun; and California was seized 
with a lofty contempt for the rights of native Californians. 
However ungracious or unrighteous the seizure of this country 
may have been, it proved a master stroke of policy, although 
eventually an extremely costly one. With the conquest itself, 
and with the national importance early attained by this Minerva 
of the Pacific, — severely testing the stability of our republic in 
its integrity, — this sketch cannot be primarily concerned. The 
question of slavery extension, which had become paramount in 
American politics, was the actuating cause in California's con- 
quest, and the rock of offense upon which, through California's 
entreaties for admission, our Union well-nigh split. After the 
admission of Texas in 1845 there were twenty-eight States, in 
fifteen of which slavery existed ; but after the admission of 
Iowa, in 1846, and of Wisconsin, in 1848, the slave States 
and the free States were numerically equal. That free States 
could be admitted only when accompanied by slave States 
seems to have been an admitted principle.^ What disposition 
was to be made of rapidly developing California? Could 
slavery be rightfully introduced into this western country? 
If so, could slave labor be successfully employed under these 
unique conditions ? These and related questions possessed an 
absorbing interest. 

But slavery had been abolished in the republic of Mexico 
in 1829 ;^ according to a recognized principle of international 
law, the institutions, rights, and laws of a conquered country 
remain in force until legally changed by the conquering 
government. At the moment of the American conquest, 

^ q. Von Hoist, Hist., II, 139. ^ jj^-^^^ m^ 392. 



12 The Genesis of California's First Constitution. [370 

therefore, slavery did not exist in the Mexican province of 
California, and the express prohibitive law was an inherent 
obstacle at the threshold of the slavery extensionists' desire.^ 
The admission of Iowa and Wisconsin having neutralized 
the advantage of the South in securing Texas, it was clearly 
perceived by Soethern leaders that unless they obtained pos- 
session of this new territory, the fruits of the war with Mexico 
would be lost to them.^ It was obvious that slavery could 
not be introduced into California without first meeting and 
settling the gravest difficulties. It was with great reluctance 
that the South became convinced that the spoils of the Mexi- 
can war must be divided, a common view being that the 
parallel of 36° 30' would be extended to the Pacific. 

Viewed from a local standpoint, many causes militated 
against the introduction of slavery. Geographical position 
was itself a safeguard. It was early observed that neither 
the soil, the climate, nor the production of any portion of 
California was adapted to slave labor, and that property in 
slaves would be utterly insecure in that country.^ While 
many of the Southern settlers cared little about the question 
either one way or the other, those from the Northern States 
were generally opposed to this extension, not only on the 
moral principle that slavery is wrong, but also on grounds of 
local application and political expediency.^ After the gold 
discovery, when citizens of all ranks became diggers, the 
introduction of slaves would have been far more vigorously 
opposed, although few then cared anything about slavery in 
the abstract, or greatly interested themselves in the Wilmot 
Proviso. 

1 Cf. Khodes, Hist. U. S., I, 93-4 ; Von Hoist, III, 392, et seq. See also 
letter of N. P. Trist to Secy. Buchanan, quoted in Von Hoist, III, 334. 

2 Cf. Fitch, in Century, XL, 779. 

^ See Buchanan's letter, quoted in Cal. Star, Mar. 25, 1848. 

* Calif ornian, June 19, '47, March 15 and May 24, '48 ; Cal. Star, March 
25, '48; Alta California, Feb. 22, '49. Cf. Daily Evening Bulletin [S. F.], 
May 23, '78, II, 1; Sac. Record-Union, Sept. 9, '84, I, 4; Colton, Thirty 
Years in Cal.y 374. 



371] Introduction, 13 

Mexicans were viewed with contempt by American citizens. 
It has always been true that powerful nations have had the 
weakness of encroaching, on occasion, upon races deemed to 
be inferior, and often of trampling, with no great scruple, 
upon technical justice for the sake of aggrandizement. But 
the native-born Californians were by no means wholly con- 
temptible. The earliest American settlers in the territory of 
California held Mexicans as of little more consequence than 
Indians. The constant rumors about the establishment of 
an independent government there, or of other revolutionary 
movements, occasioned much talk on the part of the Cali- 
fornians about expelling the Americans, whose settlement in 
their province they viewed with manifest displeasure. On 
the other hand, the Americans were extremely suspicious, and 
wanted but a pretext in order to engage in acts of war, 
although in 1844 not over a hundred men could have been 
mustered into an army.^ A change of temper, however, 
began to be observable before the American conquest ; and 
it was not long after that event before native Californians 
came to be distinguished from Mexicans. The intelligence 
and refinement of many natives was admitted, and a friendly 
relationship sprang up between them and the Americans.^ 
Most of the Hispano-Californians came to think of Mexico 
only as a foreign nation, and gradually they began to mingle 
with the Americans,^ who, it was seen, were inevitably to 
become the predominant element in California. After the 
conquest was fully achieved, which, indeed, occasioned little 
real difficulty, the Californians, for the most part, readily 
acquiesced in the new regime, and their more enlightened 
leaders were treated by Americans with a high degree of 
respect and more than ordinary courtesy ; seven of their 



1 Bid well (pioneer of '41), in Overland Monthly, XVI, 563-4 ; cf. O'Meara, 
Ibid., XIV, 626. 
^ Oalifornian, Nov. 17, 1847. 
» Cal Star, Apr. 1, 1848. 



14 The Genesis of California's First Constitution, [372 

number were members of the Constitutional Convention,^ in 
which they received marked attention. 

The discovery of gold was an event of the very highest 
importance. California became El Dorado. The unsuited 
system of mongrel law, which had been feebly perpetuated 
from the Mexican dominion, was rendered virtually null by the 
sudden influx of wealth and a population so vast and varied, 
and the authorities were brought to " entire dependence upon the 
humor and caprice of the people.'^ ^ Soldiers deserted, seamen left 
their vessels in the harbor, lawyers despised their fees, editors 
ceased their publications, — all to rush wildly to the mines. 

The mania for gold gave an abnormal impulse to trade and 
commerce. San Francisco harbor was transformed into a 
forest of masts. The political confusion deepened, and causes 
for the Governor's solicitude multiplied ; but the lawless 
element was not suffered to predominate, even the mining 
camps maintained strict regulations, and withal an enormous 
impetus was given to the movement for general organization. 

The political and constitutional, as well as the social, con- 
ditions of territorial California were unique. Never were law 
and administration more needed : seldom has an enlightened 
community endured so inadequate a legal system and so pre- 
carious an administration. The early Californian leaders, 
Castro, Vallejo, and Pico, were too discreet to attempt an 
expulsion of the Americans after the conquest; and the 
Americans were not permitted to throw off the uusavory 
Mexican law. The persistent desire for admission into the 
federal Union was itself doubtless a bar to the much-needed 
local organization. The profound national significance of this 
new acquisition at a time when there was but one question in 
American politics is the key that must be constantly in the 
hand of the student who would gain a comprehensive view of 
the local, distracted situation. Slave extension created Cali- 
fornia : California effectually checked slave extension. 

^ Their names are in Browne's Debates in the Convention, 478-9. 
*McGowan and Go's. Guide-book, "California" [1850J, 158. 



CHAPTER II. 

Desire for Organized Government, and 
Congressional Failure. 

The earliest American settlers of California went to that 
country as a province of Mexico under Mexican law. As 
adopted citizens of Mexico, therefore, they were living 
under Mexican law at the time when the territory was taken 
possession of by the United States forces in 1846 : thus, 
speaking technically, they could claim no other rights than 
such as are allowed, under the laws of nations, to a conquered 
people. But these same settlers, who were really loyal Ameri- 
cans, were placed in a unique position inasmuch as about nine- 
tenths of the army which conquered the country was composed 
of their own numbers. As foreigners residing in a province 
of Mexico, they had united for self-defense and had tendered 
their services to Captain Fremont, the only United States 
officer then in California.^ In reality, therefore, the Ameri- 
can portion of the inhabitants were the conquerors and not 
the conquered. The acquisition of California by some means 
had been the fixed policy of the administration at Washington : 
whether wisely or unwisely, the American inhabitants of the 
territory were a most powerful agency in the conquest. They 



^ See an interesting editorial on " Military Despotism " in the Californian, 
June 5, 1847. It recognized that on technical grounds the American inhabi- 
tants might be considered part of a conquered people, but urged that some 
allowance should be made in the unique situation, and that the Americans 
should at least " have all the advantages which can be afforded by a mili- 
tary government." 

15 



16 The Genesis of California's First Constitution, [374 

ardently desired to see California a Territory of the United 
States, and ultimately a member of the Union.^ 

The population of California in the summer of 1846, 
exclusive of Indians, was estimated at about 10,000 ; and 
probably less than one-fifth of that number were foreigners. 
These latter, however, most of whom were from the United 
States, had been rapidly increasing by immigration, while the 
natives were increasing very slowly, or not at all. It became 
more and more evident that the very institutions of the coun- 
try must suffer radical changes. To resist these changes and 
prevent the filling up of the country with foreigners, some 
steps were taken by a few native Californians : but Mexico 
has been severely censured for her disregard and utter neglect 
of her province on the appearance of United States forces.^ 
She was charged with great stupidity and weak cowardliness. 
For the American inhabitants to resist changes which would 
plainly and inevitably lead to the introduction of their own 
loved institutions were utterly unnatural and not for a 
moment to be expected.^ But on the other hand, the rapid 
extension of American political principles and the speedy 
establishment of American civil institutions were eagerly 
desired : it will be the purpose of this chapter to inquire 
into the reality and intensity of this desire for an organized 
form of government previous to the adoption of the State 
Constitution in 1849 — a period having a most vital influence 
on the subsequent history of the great State of California. 
Argument is not needed here to show that the Mexican 
provincial government was in itself ill-adapted to the needs 
of the rapidly increasing aggressive American population, and 
quite unsuited to their taste and temperament. In short, the 



^ Californian, Jan. 28, 1847. 

^ See Californian, Aug. 22, and Sept. 5, 1846. 

' For years before the American conquest the foreigners in California 
would have welcomed a change from the feeble Mexican regime to a strong, 
permanent government under the U. S. — Bidwell, Overland Monthly^ XVI, 
564 ; private MS. 



375] Desire for Organized Government 17 

American inhabitants of California would be satisfied with 
nothing but some adequate form of American government, 
and for this a clamor was set up almost immediately at the 
conquest, which did not entirely cease until California was 
fully received into the American Union in 1850. 

The American conquest, an episode in the war with Mexico, 
left California in the power of United States forces as a 
temporary military possession.^ According to a familiar 
principle of international law the customs and usages existing 
at the time of the conquest were proclaimed to continue in 
existence under the military rule, until some other government 
should be provided by competent authority. But no effectual 
measures were employed to perpetuate even the Mexican civil 
law, itself entirely inadequate under the new conditions ; 
hence California had no suitable, properly constituted system 
of government from the conquest to the adoption of the 
Constitution. 

The first number of California's first newspaper^ urges the 
establishment of a colonial government whose legislature should 
elect a delegate to proceed to Washington and claim formal 
recognition for the Territory of California, and a seat in 
Congress. Likewise the California Star early ^ urged the 
calling of a convention to form a constitution for the Territory. 
These expressions — reflections of wide-spread popular opinion 
and desire, — found their justification in the unsatisfactory 
existing order of things and in a vague sense of Anglo-Saxon 
freedom and American self-government, rather than in legal 
and constitutional grounds. 

It will be remembered that the conquest of California was 
not completed until the fall of 1846, and that there was serious 
revolt still later. Conservative Commodore Sloat was suc- 



^ I here give substantially the view of the President. For other views, 
and references to the discussion, see Bancroft, V, Ch. XXII., especially p. 
602, n. 21. 

* Galifornian, August 15, 1846. ^ February 13, 1847. 

2 



18 The Genesis of California's First Constitution. [376 

ceeded by aggressive Commodore Stockton, who immediately 
took steps to complete the conquest. Stockton's bold procla- 
mations, issued from Monterey on July 28, and from Los 
Angeles on August 15-22, are in strong contrast to Sloat's 
moderate but skillfully-drawn proclamation of July 7.^ Sloat 
had assumed, without sufficient warrant, that California was 
to be permanently a Territory of the United States and that 
its peaceful inhabitants were to " enjoy the same rights and 
privileges as the citizens of any other portion of that territory/' 
Californians of all classes received this proclamation most 
favorably, for it was friendly in its tone, and it held out the 
promise of good permanent government. Stockton, moved by 
" daily reports from the interior of scenes of rapine, blood, and 
murder,'' proclaimed that he would not confine his operations 
" to the quiet and undisturbed possession of the defenceless 
ports of Monterey and San Francisco ; " but declared his 
intention of marching "against these boasting and abusive 
chiefs " of the interior and of the south. That his language 
was highly colored by imagination is evident from the fact 
that the conquest was completed without a single battle, and 
that no enemy was seen.^ Los Angeles was taken without 
resistance, and from that point Stockton issued, August 17, an 
important proclamation, declaring California entirely free from 
Mexican dominion and affirming that. so soon as circumstances 
might permit, the Territory would be governed " by officers 
and laws, similar to those by which the other Territories of 
the United States are regulated and protected." 

No one in 1846 could possibly have foretold the actual 
status of the territory of California for a single year ; much 
less could one have divined the vicissitudes and unparalleled 
conditions of the three years preceding the adoption of the 



^ Sloat's proclamation is in Bancroft, V, 234-7 ; Stockton's proclamation 
of July 28 is in Annals of S. F., 103-4 ; his important one of August 17, 
is in California Star, January 7, '49. 

2 Bidwell, in Century, LXI, 523. 



377] Desire for Organized Government. 19 

Constitution. During Sloat's brief rule there was little cause 
for anxiety. He had come as a friend, and had promised a 
permanent government. Stockton came as an intimidating 
conqueror : he held out the hope of an organized Territorial 
government as soon as circumstances would admit of such, 
but declared ad interim strict martial law, permitting the 
people, to be sure, to elect the civil officers of their towns 
and " to administer the laws according to the former usages 
of the Territory." It was precisely this military rule, con- 
tinued with some modifications until the ratification of peace 
with Mexico, that evoked repeated expressions of increasing 
dissatisfaction and of growing desire for organized civil gov- 
ernment. The American population of California during 
1846 and 1847 was very small, widely scattered, and alto- 
gether in a position extremely disadvantageous for efficient, 
united political action of any kind. But it had become 
evident to the settlers that the country was destined to be 
permanently American ; and it is not surprising that a 
clamor began to arise for American laws and institutions, 
and that expressions of dissatisfaction with the impotent 
Mexican government and seemingly harsh military rule grew 
louder and louder. It cannot be charged to the discredit of 
the early settlers that they thus manifested dissatisfaction 
with the existing order of things, and evinced an earnest and 
persistent desire for organized government. They were, for 
most part, honest, energetic, and intelligent pioneers who had 
been accustomed to law and order. California being no 
longer under the corrupt and despotic rule of Mexico, they 
were not unreasonable in expecting better things from the 
United States. But their greatest grievance was the very 
want of law adequate to the protection of life and property, 
and to the complete administration of justice.^ As the popu- 
lation increased, causes for disaffection multiplied. Those 
Americans who had lived under the Mexican regime had 

^ Cal. Star, Jan. 9, 1847, and passim ; Californian, passim, etc. 



20 The Genesis of California's First Constitution. [378 

learned to accommodate themselves measurably to the exist- 
ing conditions and to the use of the Spanish language : but 
in proportion as the American population increased after the 
conquest, and gradually gained the ascendency of numbers, it 
was unreasonable to expect the new comers to adapt them- 
selves to the effete Mexican laws, at best only partially 
perpetuated and imperfectly administered, and laboriously to 
acquire mastery of a language plainly and speedily being 
superseded by their own Englisli. 

Before Commodore Stockton had established a civil gov- 
ernment in California,^ General Kearny superseded him. 
Kearny's proclamation of March 1, 1847, gave hope of the 
early establishment of a free Territorial government, and 
virtually promised that the people would soon ^' be called 
upon to exercise their rights as freemen in electing their own 
Kepresentatives to make such laws as may be deemed best 
for their interest and welfare.'^ ^ Thus the people were again 
stirred to hopefulness and urged on in the chase after the 
phantom of Territorial organization, destined ever to elude 
their grasp. The establishment of a civil government at that 
time would have been welcomed with keen satisfaction, and 
would have had, it was believed, ^' sl most salutary effect, 
whatever difficulties may have occurred during the military 
occupation." ^ 

But the desired government was not established under 
Kearny's rule. By the time that he was succeeded by 
Colonel Mason,^ many persons had begun to think that there 
were actually no laws in force " but the divine law and the 



^Stockton had prepared a plan for civil government, which, however, 
was never put in full operation. For the projected system see Cutts' Con- 
quest, 121-125. In his report Stockton assumed that the change from mili- 
tary to civil rule naturally and necessarily followed the conquest of the 
country. See Report, 40, cited by Bancroft, V, 285. Hittell says the plan 
of government was issued and promulgated. Hist. Gal, II, 586. 

^ This proclamation is in the Californian, Mar. 6, '47. 

» Californian, Mar. 13, 1847. ■• May 31, 1847, 



379] Desire for Organized Government 21 

law of nature : " the " former usages/^ whose existence had 
been proclaimed, had become so intangible and evanescent as 
to lead the editor of the Star to acknowledge his inability to 
discover the whereabouts of any general written laws what- 
ever/ "Lex/' in the Californian, calls to the attention of 
Governor Mason the fact that " nothing has as yet been done 
to maintain ^ the authority and efficiency of the laws ; ' nearly 
five months have elapsed since this [Kearny's] declaration 
was made, and yet not one single law has been enacted to 
meet the necessity of any case ; and in order to enable the 
authorities to give efficiency to the law, not one single law, 
supposed to exist in the territory, enacted by the legislature of 
Mexico, or by the junta of this [San Francisco] department, 
has yet been defined." ^ 

Congress had been busy with the great concerns of the war 
with Mexico : all early negotiations had failed of peaceful 
issue. While a keen interest in the acquisition of California 
was already manifest in Washington, Congress could hardly 
be expected at this early stage, while war was yet in progress, 
to mature plans for the permanent Territorial organization of 
the conquered country : and it did, in fact, adjourn on March 
3, 1847, having made no provision for the government of 
California. 

Colonel Mason came with full power to establish a temporary 
civil government in California,^ and immediately began study- 
ing the existing conditions and formulating the Mexican laws 
believed to be in force. Before the designs of Governor Mason 
had become generally known, the law-loving settlers, disap- 
pointed in their hope of civil organization under Kearny, 
grew more clamorous in the expression of their desires under 
the new executive. The feeling that they had been grievously 
wronged, if not wilfully deceived, began to take hold of them 



^ Gal. Star, Mar. 27, 1847. ^ Californian, July 17, 1847. 

'See instructions, Cal. Mess, and Cor., 244-5. 



22 The Genesis of California's First Constitution, [380 

in earnest/ The expectation of tidings of peace and of a 
scheme for civil government from Washington doubtless 
influenced Mason to delay his own plans, or entirely to 
relinquish them.^ This relinquishment was a sore disap- 
pointment to the agitators for organization, for they had been 
led to believe that the Governor had actually commenced work 
on his civil organization, which, had it been executed, " Cali- 
fornia may be considered as fairly set out on the road to 
prosperity and greatness : '^ ^ but they were brought to an atti- 
tude of hopefulness by the sanguine expectation of Mason that 
peace was at hand, and that a communication from Washington 
would early gratify their desire. And besides. Congress was 
in session, and would presumably provide for this important 
province. 

All these hopes proved unfounded, and the clamor for civil 
government was vigorously renewed.* Mason's code was 

^See the long and impassioned editorial on " Civil Organization," in the 
Californian, January 5, 1848. I quote briefly : " In view of our civil rights, 
in view of the security of person and property, in view of all the sacred 
rights and privileges secured to us by the fundamental laws of our govern- 
ment, we must say that we have acquired nothing, but have lost everything. 
. . . We know nothing of the design of the present Executive, in reference 
to the organization of a civil government ; but we do know that the people 
very much desire such organization. . . . Our Executive being fully aware 
that the people are extremely anxious that a civil government should take 
place, that our government wishes to provide a government for us with the 
least possible delay, ... we cannot doubt, even for a moment, but that the 
most sanguine expectations of the people will soon be realized." Cf. Address 
of J. R. Browne, in First Annual of TyH. Pioneers of California, 55. 

2 Californian, May 3, '48. 

3 Ibid., April 26, '48 ; California Star, April 22. 

"*! quote from an interesting but somewhat erratic editorial in the 
Californian, December 29, 1847. " The subject of a civil organization seems 
now to agitate the public mind throughout the entire territory. . . . Our 
citizens are everywhere, with the greatest imaginable solicitude and 
entheusiasm, inquiring why it is that they are thus neglected. . . . They 
say that they are American citizens, and they are. They say that they, too, 
are entitled to the sacred privileges and immunities guaranteed to us by 
irrevocable, constitutional law, and they are. . . . Wherever we go, the 



I 



381] Desire for Organized Government. 23 

never published ; ^ tidings of peace did not arrive for several 
months ; and the violent debates of Congress ended at a late 
date without legislation . Before the opening of the session in 
December President Polk had satisfied himself that the 
province of California should never be surrendered, and hence 
that the civil jurisdiction and laws of the United States should 
be extended over it. He therefore in his annual message had 
recommended the establishment of a " stable, responsible, and 
free government " over the Californias and New Mexico. 
" I invite the early and favorable consideration of Congress 
to this important subject,'^ he had said ; ^ but Congress, in a 
session which lasted more than eight months, failed to con- 
sider it effectually. 

serious and destructive defects of our government are the chief topics of 
conversation. . . , That the people are extremely desirous of an organi- 
zation, must be apparent to every officer in the territory, who has upon any 
occasion condescended to hear a suggestion from that source. . . . But 
what the people desire, what we, as good and loyal citizens, are entitled to, 
what the United States ' wish and design,' what the President unequivocally 
sanctions and approves, and what natural right demands, is some kind of a 
government, which will, at least, render life, person, and property secure. 
Whether temporary or permanent, it matters not, but we hope that a 
government will at once be organized fully adequate to the purposes for 
which it is designed, and at least, coexistent with the evils which it is 
designed to remove." 

^Alta California, June 14, 1849; Californian, August 14, 1848. Bancroft 
says that Mason "formally promulgated a code printed in English and 
Spanish," citing only the article in the Californian which mentions the fact 
that the code was printed. History VI, 263. The AUa, however, definitely 
states that while the code was printed, in consequence of the news of peace 
" Governor Mason never published nor attempted to enforce those laws ; " 
and continues : " we have shown that since the peace the government 
abandoned its design of promulgating a code of laws based upon the Mexican 
law, even after those laws were printed and partially bound." Gen. Bidwell 
writes in a private letter : " In regard to ' Mason's Code : ' if it was ever 
promulgated I never heard of it. That it was printed and circulated without 
my hearing of it I can scarcely credit." It was July, 1849, when General 
Riley caused to be published "such portions of the Mexican Laws . . . 
as are supposed to be still in force and adapted to the present condition of 
California." Browne's Debates, Appendix. 

^App. to Cong. Globe, XVIII, 3. 



24 The Genesis of California's First Constitution. [382 

In the meantime an event of the profoundest significance 
had happened. Gold had been discovered. The news was 
being disseminated ; the tide of immigration had begun. 
The already growing desire for organized government was 
greatly accelerated.^ The need was almost infinitely increased, 
and better administration of justice seemed to be absolutely 
imperative.^ Could honest Americans hope longer for the 
promised civil organization from Washington, or should they 
thenjselves take the initiative ? ^ 

The first excitement of the gold discovery had not yet died 
away, nor, indeed, had the immigrants begun to arrive in very 
large numbers, when tidings of peace with Mexico reached 
Governor Mason.* No one could doubt that California was a 
permanent part of the United States. Here, then, was the 
message which had been so long awaited by Mason and which 
legally put an end to military rule. The tidings were taken 
by the citizens as an omen of generally diffused benefit and 
the opening of the brightest possible prospect.^ Unfortu- 
nately no scheme for legal Territorial government accom- 
panied the tidings of peace : instead of passing from military 
rule, under which the people had grown so restive, to a 
permanent and satisfactory form of civil government, Cali- 
fornia passed, without perceptible change, into a period of 
mere de facto government, more popularly known as the 
No-Government period. 



1 Bid well, Private MS., 5. 

^It is thought unnecessary to point out in detail the unique and precari- 
ous conditions imposed by the immigration of the gold-hunters. They are 
among the most familiar facts of California history. 

3 See editorial in Cal. Star, May 20, 1848, from which I quote: "The 
people of this territory have been induced from the first hour of its occupa- 
tion by the forces of the United States to believe a territorial government 
would be early granted, that the welcome boon of a Avise administration of 
wholesome laws, was a prize already within their grasp. . . . The people 
of this territory are now awaiting the promised administration of decisive 
law. They require it — they expect it, and to it they are entitled." 

*Aug. 6, '48. 5 Californian, Aug. 14, 1848. 



383] Desire for Organized Government. 25 

At this critical stage there was among lovers of law 
and order genuine and widespread solicitude for California's 
future. Colonel Mason fully appreciated the delicacy of the 
situation, and used his best efforts to conciliate all parties ; 
but what could he do now but await the arrival of the 
8t Mary'Sy sloop-of-war, with the long-expected Territorial 
government? After conference with Commodore Jones, he 
decided that in default of Congressional action he would 
immediately recommend "the appointment of Delegates by 
the people, to frame laws, and make other necessary arrange- 
ments for a Provisional Government for California." ^ The 
Californian had despaired of Congressional action. It had 
said : " Months, and perhaps years, will elapse before the 
national legislature will arrive at a harmonious conclusion of 
a territorial government for California. The much vexed 
subject of slavery . . . will prove an insuperable barrier to 
dispatch."^ But Mason, careful perhaps to a fault not to 
exceed his instructions, waited for news from Washington. 
The St. May^y^s arrived with the news of Congressional 
failure, and the question of a regular Territorial govern- 
ment for California was believed to be settled,^ although the 
subsequent Congress was yet to be the scene of many a tem- 
pestuous discussion and violent conflict — all to terminate, once 
more, in dogged dead-lock. 

The leaders of popular thought now believed that the peo- 
ple might set out, with none to hinder, to prepare for them- 
selves a provisional government. " The cause is urgent and 
the times admit of no delay." ^ It was hoped that every true 
American citizen would lend hand and influence in rearing 
and supporting a wise government.^ That this belief took firm 
hold on the popular American mind is evidenced by tokens 



^Star and Californian, Nov. 25, 1848. ^Qct. 21, 1848. 

^Star and Californian, Dec. 16, 1848. *2Z>id 

*0n the difficulty of securing deliberate action from those migratory 
strangers, see Willey, in Overland Mo., IX, 14. 



26 The Genesis of California's First Constitution. [384 

not to be mistaken. On December 11, the citizens of San 
Jose met " for the purpose of taking into consideration the 
propriety of establishing a Provisional Territorial Govern- 
ment, for the better protection of life and property'' until 
the United States should extend its protection by furnishing 
government and laws for California. Resolutions of a tem- 
perate and judicial character were adopted, recommending 
that delegates from the several districts be sent to a general 
convention in that pueblo at an early date.^ Similar pro- 
visional government meetings were held in San Francisco, 
Sacramento, Monterey, and Sonoma.^ These large and usually 
unanimous meetings may be considered a fair index of the 
feeling of the principal communities of the entire territory.^ 
The subject engaged the serious thought of the ablest minds. 
Mere mention of the names of a few leaders will be sufficient 
to indicate that the movement was neither sporadic nor irra- 
tional, much less disloyal and revolutionary. Burnett, Norton, 
Colton, Botts, Lippitt are some of those who took the initiative 
in this movement towards a provisional government. These 
preliminary movements were clearly not dictated by political 
faction, nor had they any connection with instructions from 
Washington ; ^ they were without doubt the honest expression 
of the best popular feeling. " There were no partisans in the 
matter, where there was only one great party and that included 
the whole thinking population.'' ^ 

Popular progress toward organization was uninterrupted 
for several months. The citizens of San Francisco created 



^ See report of meeting and resolutions in full in Star and Californian, 
Dec. 16 and 23, 1848. These and succeeding contemporaneous reports are 
both interesting and important as reflecting widespread and really intelli- 
gent opinion. 

^ For contemporaneous accounts of these meetings, consult : Star and Cali- 
fornian, as above ; Placer Times, July 9 ; and Alta California, Jan. 25, 
Feb. 22, Mar. 22, 1849 ; etc. 

3 Cf. Alta California, Jan. 4, 1849 ; Annals of S. F., 135-6. 

^Colton, Three Years in CaL, 373. ^ Annals of S. F., 136-7. 



385] Desire for Organized Government. 27 

for the temporary government of that district the so-called 
Legislative Assembly of fifteen members. Mason, as de facto 
governor, did not see fit to interfere with these popularly 
initiated movements. Similarly, General Smith, Mason^s 
military successor, while not formally recognizing the legal 
existence of the San Francisco Legislative Assembly, did not 
actively interfere with its government nor with the general 
organizing tendency. 

The district of San Francisco came to have a commanding 
influence in this movement : yet there was by no means that 
coherency and singleness of purpose in respect of detail that 
was needful for dispatch. Moreover, local conditions, espec- 
ially the difficulty of communication and travel in that notable 
winter, were forbidding, and interposed delay. Nevertheless 
the leading American citizens in California held to the one great 
purpose of organized government with remarkable persistence. 
Undaunted by difficulty, they proceeded with growing confi- 
dence in working out for themselves the great problem, and 
seemed to be almost within sight of success, when unlooked- 
for events called for readjustment of program. 

In the spring of 1849 General Kiley superseded Colonel 
Mason as de facto governor of California. He recognized 
the grave difficulty of undertaking to administer the civil 
affairs in a province which was neither a State nor an organ- 
ized Territory : he desired to keep the military authority, so 
intolerable to the people, as perfectly hid from view as possi- 
ble. While the undisputed fact of his military authority was 
itself offensive to leading settlers, they denied that he possessed 
any civil authority whatever. But as chief executive of the 
province, he must needs act in civil capacity : hence arose 
the controversial conflict between de facto (or ex-officio) Gov- 
ernor and people. While General Riley awaited the final 
news from Congress, the people of the several districts pro- 
ceeded, with characteristic American regularity, in their 
arrangements for a civil government proceeding from their 
own initiative. 



28 The Genesis of California's First Constitution. [386 

But what of Congress now ? The short session had begun 
December 4, 1848, and ended March 3, 1849. President 
Polk had again referred to the subject of California's needs, 
this time affirming that the condition of the country impera- 
tively demanded the immediate organization of a Territorial 
government.^ To be sure, the very limited power of the execu- 
tive had continued to be exercised ; but the only government 
that remained after the conclusion of peace with Mexico was 
that established by military authority during the war, now a 
mere de facto government at best, resting on the presumed 
consent of the inhabitants. In view of the extraordinary 
exigencies of the case, Polk was most urgent in warning Con- 
gress to provide legal organization. But the same national 
difficulties which had blocked action at the last session proved 
too great to be overcome now. Indeed, the consideration of 
the territorial condition of California was not fairly begun 
in the Senate until late in February, 1849, when Walker 
introduced his amendment to the general appropriation bill.^ 
Then followed an extended constitutional debate in which 
Webster and Calhoun figured as leaders.^ After great dis- 
play of dialectics Walker's amendment in a modified form 
passed the Senate by a close vote, on February 26. This 
would extend the Constitution of the United States over the 
newly acquired territory west of the Rio Grande, and give 
the President authority " to prescribe and establish all power 
and useful regulations in conformity with the Constitution," 
and to alter the same at his discretion as circumstances 
demanded. On the following day the House passed a 
territorial bill excluding slavery from the new Territories. 
Walker's amendment was defeated in the House, and the 



^Ex. Doc. 2 S., 30 C, H. R. I., 12 ; c/. Hittell, II, 701-2. 

2 Cf. Von Hoist, III, 443 et seq. 

^ For Webster's opinion as to the proper course to pursue, see Curtis, 
Webster, II, 353, 362-4. Calhoun's views are set forth in his Works, IV, 
535-541. 



387] Desire for Organized Government. 29 

House bill was killed in the Senate Committee. A joint 
committee reported its inability to unite upon any plan. 
The last session of the Congress came ; the debate continued 
far beyond midnight. The stormy scenes of the Senate 
chamber on that last night of the Thirtieth Congress have 
perhaps never been equalled in the annals of American 
legislation.^ It was nearly four in the morning when 
Webster succeeded in securing a vote on the motion to drop 
Walker^s amendment. The motion once adopted, the appro- 
priation bill quickly passed both Houses, and Congress 
adjourned having failed to make any provision concerning 
the new territories. The troublesome subject was thus left 
for a new Congress and a new administration.^ 

Immediately on learning that Congress had the third time 
failed to make provision for the government of California, 
General Riley asserted his civil authority in a most emphatic 
manner by issuing a call for a general Constitutional Conven- 
tion,^ and by proclaiming the so-called Legislative Assembly 
of San Francisco, the head and front of the settlers' move- 
ment, to be an illegal and unauthorized body.^ The Assembly, 
on its part, protested against Riley's intervention, and reas- 
serted what it believed to be its undoubted right ; viz.^ the 
right of self-government, in default of suitable government by 
the United States. The issue was sharply defined ; but the 
citizens were too much in earnest in their desire for efficient 
government to allow themselves haughtily to stand out against 
the de facto Governor and hold themselves aloof from his really 
practicable measures just announced : therefore they were not 
long in acceding to his time and place for the Convention, 
although their leaders did hold to the last that while Riley, 



^Cf. Von Hoist, III, 454; Fitch, Century, XL, 784; Willey, Ov. Mo,, 
IX, 14. 

2 Cf. Schouler, V, 119. 

3Cal. Mess, and Cor., 776-780: dated June 3, '49. 

* Ihid., 773-4 : dated June 4. 



30 The Genesis of California's First Constitution. [388 

as any other person, had power to suggest or recommend, he 
had no power to appoint or command. Had the settlers 
cared less about the government of their province and more 
about carrying a point of law — which is indeed perplexing 
enough, but which they thoroughly believed in ^ — their real 
end would doubtless have been defeated, and their mild 
revolution would have taken on the serious aspect of open 
defiance. Fortunately they were not sticklers for what was 
after all a technicality. If there were those who wished to 
maintain their position at all costs, the ardent desire of that 
overwhelming class of hard-headed Americans whose one aim 
was paramount, the means subordinate, proved a sufficient 
corrective. The pressing need of government and desire for 
it, the personal respect which General Riley commanded, and 
the patent practicability of his plans overruled objections, 
united parties, and gave the key to ultimate success. 

Why this intense and persistent desire for organized govern- 
ment in California? Why not be content in that wildly 
exciting and highly dramatic period with the very wildness 
and drama? Had not those argonauts left restraint and law 
and conventionality that they might enjoy weird freedom ? 

The population of California had increased from about 
10,000 in the summer of 1846 to 26,000 at the beginning of 
1849, and to 50,000, by the first of August of the same year.^ 
The first census, that of 1850, showed a total population of 
92,597, or an industrial population of 77,631 : of these, 
mining gave direct employment to 74 per cent., while many 
others were indirectly dependent on mining. A mere recital 
of the most familiar facts regarding the increase and character 
of population is sufficient evidence, a priori, of the need of 
adequate and suitable government. The need was sorely felt, 
and the highly unsatisfactory condition of affairs was impa- 



^ Burnett, Recollections and Opinions, 331-2. 

2 Californian, Aug. 22, 1846 ; Vassault, Overland Monthly, XVI, 287 et seq. 



389] Desire for Organized Government 31 

tiently declaimed against. The military executives and the 
national administration recognized the need no less than did 
the people, but virtually confessed themselves powerless to 
satisfy the demands of the anomalous conditions. While 
many of the radical settlers were passionate in their utter- 
ances, and often unwarranted in their denunciation of officials, 
even the most conservative admitted that ^' something ought 
to be done towards developing a civil organization of govern- 
ment." ^ The feeble attempt to retain in force the old Mexican 
laws, as might be expected, had ended in almost complete 
failure. Apart from the fact that these laws were rendered 
inapplicable under the changed conditions, the Americans, 
who were to be governed by them, and the authorities, who 
were to administer them, were alike totally ignorant or com- 
paratively unfamiliar with them.^ California had been con- 
quered by Americans ; the immigration of settlers now made 
Upper California an American community. To engraft the 
semi-barbaric Mexican system of law upon such a community 
would be utterly opposed to the American spirit and sure of 
partial failure : yet even such an engraftment was never fully 
made, nor scarcely rationally attempted. 

Again, there was no recognized legal system of taxation for 
governmental support. Congress extended the United States 
revenue laws over California, with San Francisco as a port of 
entry, but provided no legal government : hence there were 
loud protests against the imposition of a system of taxation 
not only without representation of the people, but, so far as 
Congress was concerned, without any government at all.^ 

A most potent cause of anxiety for new government was the 
feeling, fostered by promise and flattery, that the existing 
unsatisfactory arrangement was merely temporary, and that 
either through Congress, or the administrative authorities, or 



^ See Californian, Jan.-Feb., '48. 

2 Cf. Vassault, Overland Monthly, XVI, 288-9 ; Bidwell, Private MS., 3. 

3 See address of S. F. Assembly, Alia CaL, June 14, 1849. 



32 The Genesis of California's First Constitution. [390 

popular action, organization would soon be an accomplished 
fact. Thus the people were exasperated by Congressional 
delay ; they wearied of governors' promises and hopes which 
repeatedly proved unfounded ; and yet they lacked facilities 
themselves for early concert of action. They were still left, 
according to extravagant "Pacific/' ^^ after two years of 
anarchy, precisely as [they] stood at the start, — sans law, sans 
order, sans government.'' 

Admitting the complaints to have been often unwarranted 
and sometimes wholly irrational, it is yet clear that at no time 
after the conquest were person and property sufficiently 
protected.^ But the supreme need arose after the immigration 
of the gold hunters had set in. The immigrants previous to 
the gold excitement had for most part come to California to 
settle permanently. They were a set of honest, sturdy 
American pioneers, who|p native capacity to improvise and 
adapt served them well in many a unique relation. But now 
came a heterogeneous tide of adventurers and speculators from 
all lands, not one-tenth of whom expected to dwell permanenly 
in California.^ The gaming table became a breeding place for 
drunkenness and crime of every sort. San Francisco was for 
a time terrorized and almost dominated by an irresponsible 
organization known as the Hounds, who afterwards styled 
themselves Regulators. Law was wanting, justice was defeated, 
and villainy became temporarily rampant. But the peace- 
loving citizens of San Francisco vindicated promptly and 
with a strong hand their integrity and their honor ; and in 
their summary defense of justice, they forshadowed the stern 
regime of the California Vigilance Committees.^ 



^ The editor of the Californian, December 29, 1847, by no means the most 
passionate writer of the day, employs this rhetorical period : " Crime, 
rapine, and inhumanity, stalk abroad throughout the land, unchecked and 
unawed. Murder is committed here, and manslaughter there ; to-day we 
hear of theft and robbery, and to-night of burglary, rape, and arson." 

' Dr. Benjamin Shurtleff fixes the proportion at not more than 3 per cent. 

^ See Bancroft, Popular Tribunals, I, on the Hounds, the Eegulators, etc. 



391] Desire for Organized Government 33 

It could no longer be said that the desire for organized 
government was universal : indeed, the great majority of these 
later pioneers cared little or nothing about general laws or a civil 
government, — they came seeking gold. But, as already pointed 
out, the desire for government and the preliminary movements 
in that direction on the part of those most solicitous for Cali- 
fornia's welfare grew with the gravity of the situation. Not a few 
of the new comers patriotically joined the advocates of a more 
effective rule ; and among those Americans who gave the subject 
any just consideration, there seemed to be no dissenting voice. 

The sudden appearance of a large lawless element and the 
consequent increase of crime and added insecurity gave adhe- 
siveness to the law-loving citizens, demonstrated the inadequacy 
of existing institutions, and intensified the desire for a new 
regime, a regime which could be inaugurated only by a 
General Convention and thorough organization. The popular 
movement towards a civil government, the magnanimous 
acquiescence in the plans of General Riley, and finally, the 
Convention itself,^ held at a time when fortunes were being 
made in a day, furnish most unimpeachable evidence of the 
long existence, the continuity, and the intensity of the popular 
desire for organized government. The exciting scenes and 
anomalous conditions of California were the comment of the 
nations : the desire for government was universally known.^ 

* A perusal of the debates of the Convention will reveal the sentiment of 
citizens reflected by delegates. For example, see G win's remark, p. 198. 
" We all know that we ought to have had a government ; that such a case 
never existed before in the history of any Government, that such a great 
country as this should have been neglected as it has been." Report of 
Ways and Means Committee, p. 201 : " No portion of the Territory of the 
United States ever more needed the paternal care of a Territorial Govern- 
ment. We are without public buildings, court houses, jails, roads, bridges, 
or any works of internal improvement." TefFt's remarks, 366, &c. 

^See Snyder's remark in Convention, Debates, 182 : "We have been waiting 
anxiously for a long time for a government. It is well known, sir. All over 
the world is it known. And never has the world presented such a picture ; 
a people at peace with nations, occupying a proud and lofty position, an 
integral part of the great American Union, without a civil government." 

3 



CHAPTEK III. 

The Constitutional Convention. 

General Riley's proclamation set apart the first day of 
August^ 1849, for the election of delegates to a general Con- 
vention which should form a State Constitution or a plan for 
Territorial government. The Convention was to meet on the 
first of September, in the town of Monterey, California's early 
capital. To the Spanish population of the south the procla- 
mation was comparatively unintelligible ; the people of San 
Francisco inclined at first to dispute Riley's right to issue the 
call ; and the miners at the north could hardly be supposed 
to interest themselves in political or civil affairs.^ But the 
necessity for organization was patent, and the desire for better 
government was strong : this opportunity for a consummation 
was not to be neglected. General Riley, General Smith, and 
Thomas Butler King stimulated the people by every means 
to hold preparatory meetings. In some districts scarcely any 
steps were taken until a few days before the election, but for 
most part the efforts were successful.^ The prospect for suc- 
cess, at first doubtful, improved as election day drew near. 
The native Californians showed unexpected cordiality of 
sentiment. San Francisco laid reluctance aside, and even the 
miners began casting about for suitable candidates.^ The 
amount of interest actually taken had not been anticipated. 



^ Willey, Constitutional Convention in Monterey ; also in Overland Monthly, 
IX, 14. 
* Cf. Frost, Hist, of Cal., 124. ' Willey, Constitutional Convention. 

34 



393] The Constitutional Convention. 35 

The election of delegates proceeded, with fair regularity, on 
the day appointed. In one or two instances the election was 
not held on the day appointed, although the delegates were 
nevertheless admitted.^ The delegates were elected by the 
scheming of no political parties nor combination of interests : 
competent men were sought.^ On Saturday, September 1, the 
members elect were generally in Monterey, ready for business. 

The Convention^ proceeded to organize on Monday, Septem- 
ber 3. The meeting place was the upper story of a spacious 
building of yellow sandstone, known as Colton Hall, perhaps 
the only building in California well suited to the purpose.* 
Kimball H. Dimmick had been appointed Chairman, pro 
tempore, and Henry A. TefPt, Secretary, pro tempore. The 
first question was on the eligibility of delegates to seats in the 
Convention and the apportionment of representation in the 
several districts.^ The greater part of two days was con- 
sumed in arriving at a satisfactory adjustment : forty-eight 
delegates were at length accounted regular members of the 
Convention. 



1 Browne's Deh., 8 ; cf. Frost, 124 

2 Ex. Doc, 1 S., 31 C, H. E., VIII, 59, pp. 1-6; cf. Willey, op. cit. 

^ The one essential source for proceedings of the Convention is Browne's 
Debates in the Convention. The Alta California has copious reports beginning 
with Sept. 13. These are from the pen of Edw. Gilbert, editor of the paper. 
Taylor's Eldorado is also an excellent source. 

* Taylor describes the hall in Eldorado, 1 49 : " it [the stone] is of a fine 
yellow color, easily cut, and will last for centuries in that mild climate. 
The upper story in which the Convention sat, formed a single hall about 
60 feet in length by 25 in breadth. A railing running across the middle 
divided the members from the spectators. The former were seated at four 
long tables, the President occupying a rostrum at the further end, over 
which were suspended two American flags and an extraordinary picture of 
Washington, evidently the work of a native artist." 

^ The Governor's proclamation of June had fixed the apportionment, 
but on account of the subsequent change in relative population, he now 
recommended, through Secretary of State Halleck, a delegate, " that addi- 
tional delegates be received from some of the large and more populous dis- 
tricts." Browne's Deb., 8. 



36 The Genesis of California's First Constitution. [394 

For the office of President there was considerable canvassing, 
the leading names mentioned being Dimmick, Boggs, Semple, 
Foster, Snyder, and Gwin. Numerous candidates presented 
themselves for the Secretaryship.^ Dr. Robert Semple, of 
Sonoma, was duly elected President, and in his brief address 
he struck the key-note of the Convention : " We are now, 
fellow citizens,'^ said he, " occupying a position to which all 
eyes are turned. ... It is to be hoped that every feeling of 
harmony will be cherished to the utmost in this Convention. 
By this course, fellow citizens, I am satisfied that we can prove 
to the world that California has not been settled entirely by 
unintelligent and unlettered men. . . . Let us, then, go 
onward and upward, and let our motto be, ' Justice, Industry, 
and Economy.' '^ ^ Organization was completed by the election 
of subordinate officers, William G. Marcy being elected 
Secretary, and J. Ross Browne, Reporter. 

Here was a unique Constitutional Convention. Several 
nationalities were represented, but members of American birth 
were in the majority, and it was to frame an American 
constitution that the delegates had come together. The Con- 
vention was a body of men, not of national reputation or 
extraordinary learning, but disinterested, competent, and 
earnest. The body was raised above national prejudice and 
local interests by the honest and patriotic purpose which 
animated it.^ The personnel included many of those already 
most conspicuous by their endeavors to establish the common- 
wealth of the Pacific:^ the Constitution of 1849 was not the 
sudden creation of unintellectual gold hunters ; it was made 
possible only by the men of sense and by the controversies of 
the interregnum.^ 

The framers of the Constitution undertook their grave task 
amid extraordinary embarrassments and difficulties. The 

1 Alia CaL, September 13, 1849. ^ Browne's Deb., 18. 

^ Colton, Three Years in California, 410. 
* Of. Daily Evening Post, [S. F.] June 22, 1878, I, 2. 
^ Cf. Eoyce, CaL, 199. 



395] The Cofistitutional Convention. 37 

three leading classes of the population of California, viz.y the 
native Californians, the earlier English-speaking settlers, and 
the miners, held such divergent sentiments and were such 
utter strangers to one another, that it might well seem an 
impossible task to bring them to an agreement upon the 
fundamental law of an incipient State. General discussion and 
a common understanding had been impracticable. It may be 
doubted if the members of any previous convention in the 
United States, with similar purpose, ever came together so 
totally unacquainted with each other and so entirely wanting 
in general concert of plans or policies of action.^ This much, 
however, they were agreed upon, — that their task was to frame 
a constitution for the recently conquered and now almost 
wholly unorganized territory of California : by virtue of this 
constitution's conformity with the doubtful wishes of Congress, 
the province, of vague boundary and in a highly distracted 
condition, was to seek admission into the American Union. 
Recent contests in Congress of unwonted violence and repeated 
failure to legislate, left no doubt that the situation was extremely 
delicate and would demand the utmost skill. 

The difficult task fell to a body of perhaps the youngest 
men that ever met for similar purpose.^ Mr. Botts was 
"impressed with the absence of those gray hairs which he 
had seen in assemblies of this solemn character in the older 
States.''^ There was great dearth of books of reference in 
Monterey during the session of the Convention. It was 
believed that there were not above fifty volumes of law or 
history in all the town.^ Considerable inconvenience resulted 

^ Willey, Constitutional Convention ; Ov. Mo., IX, 14. 

'^ Fitch, in Century, XL, 786. 

^ Browne's I)eb., 27-8. The average age of delegates was 36 years. Carrillo, 
aged 53, was the oldest ; Jones and HoUingsworth, aged 25, the youngest. 

'* Botts, in Browne's Beb., 274. Lucia Norman (Youth's History of Cal., 
141) extravagantly says that "copies of the State Constitutions of Iowa and 
New York were the only ones that could be obtained ! " But precedents 
were not so scarce. Many State Constitutions were used, and frequently 
mentioned in the debates : and see Ord's remark in Convention ; he " had 
looked over the whole thirty Constitutions." Browne's Deb., 36. 



38 The Genesis of California's First Constitution. [396 

from the want of a printing press, and the burden of the secre- 
taries was correspondingly heavy until the adoption of a favor- 
able resolution/ 

The foundations of the new commonwealth were laid under 
adverse circumstances, yet with signal ability.^ The Conven- 
tion commanded respect as a dignified and intellectual body of 
earnest, honest men who did honor to California.^ Only 
through the largest concessions could unanimity be reached.'* 
The dignity of the occasion, the gravity of the task, and the 
importance of the result were appreciated by the delegates. 
Mr. Gilbert gave expression to a common sentiment when 
he declared : " The people will consider our acts in this 
Convention, and if they ratify them, those acts will go before 
the Congress of the United States, . . . and before all the 
nations of the world." ^ 

The Hispano-Californian delegates, seven in number, were 
treated with a high degree of respect, and to them were 
extended special courtesies.^ The proportion of native Cali- 
fornians to the Americans was about equal to that of the 
respective populations.^ General Vallejo, a man of command- 
ing presence and dignified expression, was better acquainted 
with American institutions and laws than any of his kin. Of 
good Spanish family, educated and liberal, he enjoyed great 
popularity and was for years after the Convention known as 
^*the most distinguished of living Hispano-Californians." ^ 



1 Browne's Deh., 38. 

2 Cf. Editorial in Bulletin [S. F.], May 23, '78, II, 1. 

^ Cf. Frost, 125 ; Browne, Anniversary of Territorial Pioneers, p. 56 ; Taylor, 
Eldorado, 148-150; etc. 

* " No cloud ever cast its shadow on equal incongruities grouped in cliffs 
and chasms, pinnacles and precipices, without having it broken into a 
thousand fragments." Colton, Three Years in California, 410. 

^ Browne's Deh., 149-150 ; cf. 58, 122, 141, 371, 424, 434. 

^ Ibid., Bott's remarks, 371 ; et passim. '' Cf. Taylor, Eldorado, 148. 

^ Shuck, Bepres. Men of the Pacific, 225, et seq. ; cf. Taylor, op. cit., 157 ; 
Fitch, Century, XL, 787 ; etc. 



397] The Constitutioi^al Convention, 39' 

Perhaps none was more accomplished or better educated than 
De la Guerra, of Santa Barbara, who afterwards became a 
State senator. Carrillo was a pure Castilian, of strong charac- 
ter, intelligent, and somewhat prejudiced against Americans. 
Pico's face was expressive of shrewdness and mistrust. These, 
with Castro, a man of stout frame and handsome face, 
Dominguez, and Covarrubias, comprised the native Cali- 
fornians. Pedrorena was a native of Spain. Of the other 
foreign born delegates. Captain Sutter, a Swiss, stood promi- 
nent. One of the earliest of the pioneers, universally known 
for his fort at Sacramento, he was a man " of good intellect, 
excellent common sense, and amiable qualities of heart.'' ^ 
Shannon, a native of Ireland, showed ability as a lawyer : he 
it was that introduced into the Declaration of Rights the 
section against slavery. The voices of Sansevaine, of Bor- 
deaux, and Reid, of Scotland, were scarcely heard on the 
floor of the Convention. 

It would be out of place here to particularize at length 
regarding the Americans. Many incessant toilers were among 
them, and few had come with ulterior ambitious schemes. 
Gwin, however, a Southerner of education and experience, 
seems to have come to California for the express pjirpose of 
seeking election to the United States Senate. He had served 
in Congress, had attained prominence in the Texas agitation, 
and had sat in the recent Constitutional Convention of Iowa. 
His experience in deliberative assemblies and knowledge of 
parliamentary usage gave him superior advantage ; ^ and his 
ability in debate, added to marvelous powers of leadership, 
gave him exceptional authority as the ablest politician in the 
Convention. Other Southerners who figured conspicuously 
were McCarver, lately an Oregon farmer ; Botts, a Virginia 
lawyer and good debater ; Jones, one of the youngest mem- 



^ Taylor, op. cit., 158. 

2 On Gwin, see Phelps, Contemp. Biog. of CaVs. Rep. Men^ I, 31 ; Fitch, 
op. cit., 784-5 ; Bancroft, VI, 291 ; etc. 



40 The Genesis of California's First Constitution. [398 

bers of the Convention and of short residence in California ; 
Wozencraft, a genial physician of scholarly habit ; and Moore 
of Florida, whose profession is set down as " elegant leisure." 
Three of the most assiduous workers were Captain Halleck, 
Riley's Secretary of State, who had rendered invaluable ser- 
vice in preparing the way for the Convention/ and who since 
became famous as lawyer, author, and general ; Gilbert, the 
able young editor of the Alta California, to whom the people 
of San Francisco were indebted for excellent reports of the 
Convention's labors ; and Dimmick, a New York lawyer of 
three years' residence in California. Lippitt, Norton, and 
Steuart will be remembered as leading members of the so- 
called San Francisco Legislative Assembly, of good ability, 
and earnest advocates of good government. Larkin is known 
as the " first and last American Consul to California." ^ Robert 
Semple, a five years' resident of the territory, proved himself a 
dignified and competent President of the Convention. 

It is obvious that no such assembly of men could in any 
country be called together without representing a great diversity 
of views and sentiments. The object for which they had met 
was known to be of profoundest significance in relation to the 
one overshadowing question of national politics, the most 
antagonistic phases of which had their adherents in the Con- 
vention. Even the most violent Southerners, however, had 
little or no desire to see slavery then introduced into so 
unfavorable a community.^ As the Convention proceeds, 
therefore, ulterior designs begin to appear, and intimation of 
political duplicity is not entirely wanting. The debates on the 
boundary question betray the artifice employed by some leading 
members. Yet, in general, the Convention proved its own 
sufficient corrective, and the resultant action was seldom unwise. 

The first regular session was " opened with prayer to 
Almighty God for His blessing on the body, in their work, 



^ Willey, in Overland Mo., July, 1872. 

"" Daily Evening Post, June 22, 1878, I, 2. ^ Qf^ Boyce, Cal, 265. 



399] The Constitutional Convention, 41 

and on the country." ^ On the following day provision was 
made whereby the Convention should be opened each day with 
prayer. The clergy of Monterey, consisting of Rev. Padre 
Antonio Ramirez and Rev. S. H. Willey, were request^ to 
act as chaplains ; and it was unanimously agreed ^' That the 
officiating clergy of this House be admitted to the privileged 
seats of the House." ^ 

The President being duly sworn by the Secretary of State, 
he administered the oath to the members. The important 
preliminary question whether the assembly should proceed to 
form a State or a Territorial Government engaged the Conven- 
tion but briefly, when by a strong vote State organization was 
decided upon.^ The few who opposed State organization were 
for most part either native Californians or old and conservative 
settlers. Gwin observed, in a subsequent debate, that those 
members voting against State organization represented the 
districts south of 36° 30', and that the " Representatives here 
from that region are unanimous in their votes against the 
establishment of a State Government."^ He thus without 
sufficient warrant insinuated the identity of the slave interests 
with the desire of delegates from the southern districts. The 
popular sentiment favoring the formation of a State had 
increased with remarkable rapidity, and for several months 
the organization as a Territory under the United States 
Constitution had scarcely with seriousness been thought of.^ 

The machinery of the House was completed by the appoint- 
ment of a Committee on the Constitution, of two members from 
each of the ten districts represented, with Myron Norton as 
chairman ; ^ and a Committee on Rules and Regulations of 
five members. 



^ Willey, Constitutional Convention. ^ Browne's Deb.^ 54. 

3 Ihid., 23. The vote was 28 to 8. * Ibid., 197. 

6 See King's Report, Ex. Doc. 1 S., 31 C, H. E., VIII, 59. This is quoted 
from at length in Frost's History, 118, et seq. 

^ Browne's Deb., 30. Bancroft seems to have committed the error of sup- 
posing Gwin chairman because first named. See his note in History, VI, 290. 



42 The Genesis of California's First Constitution, [400 

On the day after its appointment the Committee on Con- 
stitution, without having had proper time for deliberation 
and reflection/ reported a very unoriginal Declaration of 
Rights of sixteen sections. After sundry changes, usually 
of an unimportant nature, had been made, Shannon of Sacra- 
mento, in accordance with a pledge previously given to his 
constituents, moved to insert, as an additional section : " Neither 
slavery nor involuntary servitude, unless for punishment of 
crimes, shall ever be tolerated in this State.'^ ^ Surprising as 
it may at first appear, this vital section was, almost without 
debate, unanimously adopted. The preponderance of senti- 
ment in the Convention — much more in the territory at large 
— was undoubtedly in favor of a free State ; but that not a 
vote was recorded for slavery is matter for wonder, for fifteen 
members had emigrated from slave States.^ It is impossible 
to believe that the vast national bearing of this decision was 
then fully appreciated. It is hardly inaccurate to affirm that 
it was the " pivot-point with the slavery question in the United 
States.^'^ The institution of American slavery had passed the 
zenith of its power, and henceforth was destined steadily to 
decline. The great Commonwealth of California, entering 
the Union as the sixteenth free State, forever destroyed the 
equilibrium between North and South. 

The unanimous vote for a free State, however, by no means 
put at an end the question of slavery in all its phases. One 
of the most exciting discussions was on a section, introduced 
by McCarver, prohibiting the entrance of ^^ free persons of 
color " into the State. Slave holders, it was urged in defense 
of the section, would bring their slaves to California and free 
them in great numbers for brief service in the gold mines.^ 



^ Cf. Norton's remarks, Browne's Deb., 34. ^ m^^^ 43^ 

^ Willey, quoted in Sacramento Record- Union, Sept. 9, 1884, I, 4; cf. 
Bulletin [S. F.], May 23, '78, II, 1. 

*, Willey, Constitutional Convention ; ef. Willey, Thirty Years in Cal., 31-32. 
^ Browne's Deb., 138. 



401] The Constitutional Convention. 43 

They would be a burden on the community/ and degrade 
white labor ; ^ for they are not only most wretched, ignorant, 
and depraved beings,^ but idle, disorderly, and unprofitable.* 
It would be impossible to unite free and slave labor : the two 
races ^'can never intermingle without mutual injury.''^ On 
the other hand, members were asked to remember that the 
Constitution emanating from this Convention was " to be sub- 
jected to the scrutiny of all the civilized nations of the earth : '' 
" let it not be said that we have attempted to arrest the prog- 
ress of human freedom." ^ The Declaration of Rights adopted 
excludes slavery : is it not inconsistent to debar any race of 
men from a free State ? ^ " Let Africans be placed upon the 
same footing with natives of the Sandwich Islands, Chileans, 
and Peruvians, and the lower classes of Mexicans.'^ ^ A free- 
man should not be denied the rights " which you award to all 
mankind.'^ ® There are many free negroes in New York who 
are intelligent, shrewd, respectable citizens.^^ Let the Legisla- 
ture make whatever laws it sees fit : this Constitution should 
not provoke discussion in Congress, and thus "jeopard the 
interests of California." ^^ McCarver's proposition was adopted 
in Committee of the Whole,^^ but after further consideration in 
Convention, the proposed section was defeated by a large vote.^^ 
When the section on Corporations came under considera- 
tion, a most extraordinary opposition to banks was manifested. 
Botts, fearful that some member desired " to steal through 
this House a bank in disguise," avowed his chief object to be 
" to crush this bank monster." He recalled the " desolating 
operations" of 1836-37, and urged that no loop-hole be left, 
for then "this insinuating serpent, a circulating bank, will 
find its way through." ^* Price argued for a sound currency 



1 Browne's Deb., 138. ^ Ibid., 143, 145. » Ibid., 144. 

* Ibid., 145. 5 jj^id^^ 147^ 152. « lUd., 141, 149. 

^ Ibid., 143. 8 ii^i^^^ 141^ 150. 9 iiyid,^ 149. 

10 Ibid., 143. " Ibid., 143, 146, 150. '^ Ibid., 152. 

13 Ibid., 339. The vote was 8 to 31. '^ Ibid., 125. 



44 The Genesis of California^ First Constitution, [402 

to secure the stability of trade. The nation had recently been 
subjected to the most trying experience by reason of this 
" monster serpent, paper money : " " Let us provide then the 
strongest constitutional guards against the vicissitudes which 
we know the people of the United States have suffered." ^ 
Lippitt offered an amendment which stripped the section of 
its more objectionable features, which being accepted, the 
section was adopted. Corporations were to be formed under 
general laws, " but shall not be created by special act, except 
for municipal purposes." ^ Little real disagreement had been 
shown, and a large part of the discussion was based on mere 
suspicion and prejudice against banks.^ 

To provide a satisfactory and just system of taxation for 
such a commonwealth as California was obviously difficult. 
The large Californian land holders of the south objected — not 
without reason — to a tax which, though nominally equal, they 
feared would fall almost wholly upon them, while the great 
shifting population of the north and in the mines would enjoy 
the benefits of a government supported by the few. The 
difficulty was overcome in part by Jones' amendment pro- 
viding that assessors and collectors should " be elected by the 
qualified electors of the district, county, or town in which the 
property taxed for State, county, or town purposes, is situated." ^ 

Considerable interest was manifested in the question of sepa- 
rate property for married women .^ Many of the arguments 
are amusing, and they throw a side-light on the social status 
of the country. The husband, at the time of marriage, 
argued Lippitt, is supposed by common law to come into 
possession of the wife's property and is thus made responsible 
for her debts.^ Let us not experiment in this Constitution. 
This question is proper subject for legislative enactment. 



1 Browne's Deft., 113. ^ j^,^^^ i29. ^ Cf. Ibid., 130, 132. 

4 Ibid., 364-376. 5 Ibid., 257-269. 

^ Ibid., 262. Lippitt declares : " I am wedded to the common law." lb., 
260. 



403] The Constitutional Convention, 45 

Botts descanted upon the frailty of woman and the evils of 
woman's rights, and was for expunging the section from the 
Constitution.^ But Norton denied the relevancy of both 
common and civil law,^ and Dimmick pointed out that 
"women now possess in this country the right which is 
proposed to be introduced in this Constitution ; " it is no 
experiment here."^ It was further argued that such a pro- 
vision would be a safeguard, for men will wildly speculate in 
California ; and the gallant Captain Halleck, " not wedded 
either to the common law or the civil law, nor as yet, to a 
woman,'' conceived that it would be a great " inducement for 
women of fortune to come to California." * The section as 
proposed, granting the wife power to hold separate property, 
was finally adopted. This is believed to be the first time that 
a section recognizing the wife's separate property was embodied 
in the fundamental law of any State. Kindred sections were 
those prohibiting the Legislature from granting any divorce 
and requiring it to enact a homestead law.^ 

The debates on education showed a warm interest in the 
subject and great unanimity in favor of establishing a well- 
regulated system of common schools. No one could foretell 
positively what Congress would do ; but assuming that in the 
matter of lands Congress would be as bountiful as it had been 
to Oregon and Minnesota, a liberal provision was made for 
public education ; and with excellent foresight the Convention 
set apart the income of lands for the establishment of a State 
University.^ 

In the settlement of the Judiciary, the main point of disa- 
greement was as to the monetary limitation of the jurisdiction 
of the Appellate Court. After a debate which roused con- 
siderable excitement, an amended section was adopted giving 



1 Browne's Deh., 259-60. * Ibid., 265-6. » Ibid., 262-3. 

^ Ibid., 259. 5^rt. IV, I 26, and Art. XT, I 15. 

« Browne's Deb., 202-211; c/. Bancroft, VI, 298; Evening Post [S. F.], 
June 29, '78, II, 6. 



46 The Genesis of California's First Constitution. [404 

the Supreme Court "appellate jurisdiction in all cases when 
the matter in dispute exceeds $200.00." ^ A minor but lively 
discussion arose upon the section instructing judges not to 
charge juries with respect to matters of fact ; but the objections 
were overcome, and the section adopted.^ The Judiciary was 
made elective, and consisted of Supreme Court, District Courts, 
County Courts, and Justices of the Peace. 

By far the most animated debate of the entire Convention, 
a debate which- assumed a character of real interest and pro- 
found significance, was that upon the question of boundary.^ 
This contest, the longest and most strictly sectional of the 
session, came dangerously near to wrecking the Constitution. 
California, as a Mexican province ceded to the United States, 
was of vast but not strictly defined territorial extent, embrac- 
ing the great desert east of the Sierra Nevada and the fertile 
district inhabited by Mormons. The parallel of 42° formed 
the northern boundary ; ^ the Pacific ocean formed the natural 
boundary on the west ; and the line between Upper and Lower 
California, conformable to the treaty of Guadalupe Hidalgo, 
the boundary on the south : thus the great point in dispute 
was the eastern boundary line. 

On September 18, the Committee on the Boundary, through 
Chairman Hastings, made its report, which was referred to 
the Committee of the Whole.^ Its opinion was that the 
extent of Mexican California, then estimated at 448,691 
square miles, was entirely too vast for one State ; and the 
eastern boundary recommended was the intermediate one of 



1 Browne's Deb., 233. ^ j^^^^ 234-9. 

^ Besides the full report of this contest in Browne's Debates, several short 
accounts are to be found. Sorae of these are Taylor, op. cit, 152-4 ; Evening 
Post [S. R], June 29, 1878, II, 5 ; Hittell, II, 766-8 ; Bancroft, VI, 291-6. 
See also Lippitt, Century, XL, 794-5; Vassault, Overland Monthly, XVI, 
290, et seq. 

* Established by treaty with Spain, Feb. 22, 1819. See Treaties and Con- 
ventions, 1017. 

5 Browne's Deb., 123-4. 



405] The Constitutional Convention. 47 

the 116th parallel. The debate opened in the morning ses- 
sion of September 22 and continued till late at night.^ Sun- 
dry amendments, fixing as the eastern boundary various lines, 
were proposed and considered. The disagreement was com- 
plete and apparently irreconcilable. 

The main argument centred about the controversy between 
the party favoring the widest or full extent of territory and 
the party that wished to prescribe narrow limits. Gwin at 
once took a leading part in the contest by his amendment 
favoring the large extent. In defense of this it was urged 
that the Convention had met to form a Constitution for the 
whole of California, and it was not in its province to dis- 
member the State.^ If the limit be placed at the Sierra 
Nevada, where were the inhabitants beyond, especially the 
thousands of Mormons, to seek justice? These should be 
included for protection ; and besides, there might be vast 
wealth in this great extent of territory.^ But, on the other 
hand, Semple argued that ^* it is evidently not desirable that 
the State of California should extend her territory further 
east than the Sierra JSTevada,^^ the great natural boundary.* 
Such an immense territory as that proposed would be unwieldy, 
and could never be subjected to the operation of our laws. The 
great distances would require the legislators months of travel 
to reach the capital. Moreover, the thousands of inhabitants 
at the Salt Lake have no representation in this Convention 
and no recognition in the Governor's proclamation : they 
cannot, therefore, be compelled to come within the State of 
California.^ California has no more right to include all 
this territory than Louisiana did all the territory known as 
Louisiana.^ The South in Congress will not permit a State 
to settle the question of slavery for territory as large as all 
the Northern States in the Union : ^ whereas it is " clear that 



k 



1 Browne's Deb., 167-200. ^ jj^-^^^ jgg^ igg. 

3 Ibid., 175, 178-9, 193. * Ibid., 168 ; cf. 182. 

« Ibid., 170-1, 185, 191 ; cf. 421. « Ibid., 187. "^ Ibid., 173. 



48 The Genesis of California's First Constitution. [406 

that question is settled beyond dispute, if we establish a rea- 
sonable boundary/^ ^ 

A minor controversy, deemed to be conciliatory to the main 
issue, was on the expediency of leaving the question of boundary 
open, for settlement in Congress. Hal leek's proviso to Gwin's 
amendment, that the Legislature should have power to accede 
to any proposition of Congress limiting the boundary to the 
Sierra Nevada,^ met with little opposition from advocates of 
the larger boundary. A vital consideration was the immedi- 
ate admission of the State by Congress : keep the question of 
slavery out of Congress, said Sherwood, by taking all the 
territory and leaving Congress to cut it off at the Sierra 
Nevada if it wishes.^ But, replied Semple, ^' Congress has 
no right to dismember us ; and if she does, it can only be 
with the consent of our Legislature." * And Hastings urged 
that an open boundary meant the open question of slavery, 
which, in turn, precluded the possibility of a State Govern- 
ment for several years, whereas the great object was to secure 
speedy admission into the Union.^ 

Thus the debate continued; many members participated. 
It is evident that members had a very vague conception of 
the real extent of the territory they were endeavoring to 
include in the State.^ Probably none of the advocates of the 
larger boundary entertained the thought or desire that Cali- 
fornia would long retain all the territory described. And in 
this seems to lie the explanation why Gwin's amendment was 
adopted'' in Committee of the whole : Halleck's proviso' greatly 
mollified its rigidity. 

The actual bearing of the slavery question in the boundary 
discussion was tardily manifested : it was at first touched shyly 
and with great apparent reluctance. But as the debate pro- 
ceeded, and more especially when the Committee's report was 



1 Browne's Deh., 177. ^ ji^^^^^ 159 . ^y; 175^ 

3 Ibid., 181-2. * Ibid., 176. 5 Ibid., 173. 

« Of. Ibid., 176, 180, 194. 



407] The Constitutional Convention. 49 

taken up in Convention/ the real importance and application 
of the question began to be recognized, and sinister motives 
were charged. " It is a question," declared Tefft, ^^ in com- 
parison with which, everything else that has been argued here, 
is trifling. I believe gentlemen will see when our Constitu- 
tion comes to be considered in the halls of Congress, that it is 
a matter of vital importance, not to California alone, but to 
our whole Confederacy." ^ The ulterior design of the pro- 
slavery members was, there is little reason to doubt, to make 
the State so large as to insure a subsequent division, by an 
east-and-west line, into two large States, of which the southern 
was to be organized as a slave State.^ It is plain, however, 
that not all those voting for the larger boundary were parties 
to this duplicity. The people of California had declared 
positively against slavery, the Convention had unequivocally 
pronounced against it : it is not remarkable, therefore, that 
the friends of slavery fought with the utmost vigor for such 
vast territory as would necessitate a division. This was their 
last hope of forming a new slave State from the acquired terri- 
tory of the Pacific. 

The question being resumed in Convention on October 8, 
Hastings' substitute, proposing an intermediate line running 
through the midst of the Nevada desert, was quickly adopted, 
and ordered engrossed for third reading. But McDougaFs 
motion to reconsider the motion to engross reopened the dis- 
cussion and ended in a reconsideration of Hastings' proposi- 
tion. The advocates of the Sierra Nevada boundary were 
now confident of success, but great was their consternation 
when the report of the Committee of the whole was again 
concurred in. Upon the announcement of the vote, the 
utmost excitement and confusion prevailed.^ The wrecking 
of the entire work of the Convention was narrowly averted. 



1 Oct. 8, Browne's Deh., 417-458. ^ jj^^^^ 424. 

3 Lippitt, in Century, XL, 794-5 ; c/. Vassault, Overland Mo., XVI, 290. 

^ Ihid., 441 ; cf. Taylor, Eldorado, 152-4. 

4 



50 The Genesis of California's First Constitution, [408 

The activity of the defeated party, however, secured a second 
reconsideration on the following day, for the section had not 
yet been engrossed. The motion to engross was finally lost, 
and the proposition of Jones, fixing the present boundary, 
was adopted by a large majority.^ Thus was settled the 
most vexed and exciting question of the Convention, the 
boundary controversy. 

Other sections that elicited discussion of an interesting 
character were those two, essentially ethical, prohibiting lot- 
teries and forbidding duels. Both sections were adopted as 
reported, and incorporated in the Constitution.^ Ord^s curi- 
ous proposition, that no "clergyman, priest, or teacher of 
any religious persuasion, society, or sect, shall be eligible to 
the Legislature," quickly fell under the ridicule of Hastings, 
who moved to insert the words, " Lawyers, physicians, or 
merchants," and of Shannon, who asked the gentleman to be 
so good as to introduce " miners " into his list.^ It was quite 
generally understood that San Jos^ should be the permanent 
seat of the new government, but a lively controversy arose 
from the competition of the different localities for the first 
session of the Legislature. The advantages of no fewer than 
seven towns* were urged, but the controversy ended by adopt- 
ing the committee's proposition and selecting San Jose.^ A 
section of the Schedule which gave rise to some contention 
was that on the apportionment of representation for the State 
Legislature.^ The real contest was occasioned by the nature 
of the population in the different sections, especially in the 
mining region, where, it was claimed, the population was 
exceedingly transitory. Members dilated upon the great 
numbers of their respective constituents, and sought for them 
the largest representation permissible. 



1 Browne's Deb., 458. ^ j^^^^^ 90.93 and 246-255. ^ ^ ^^-^^ i^q_'j^ 
"* San Jos^, San Francisco, Monterey, Benicia, San Luis Obispo, Santa 
Barbara, and Stockton. 

^ Browne's Deb., 239-246. « Ibid., 404-416. 



409] The Constitutional Convention. 51 

The Great Seal of the Stjate, adopted after a short but inter- 
esting debate, was believed to be, as symbolic of the new 
State, very appropriate. The work was presented to the 
Convention by Caleb Lyons, but the real designer was after- 
ward found to be Major Garnett.^ Minerva, full grown from 
the brain of Jupiter, stands in the foreground, while at her 
feet crouches a grizzly bear feeding upon grape clusters. At 
his side stands a miner with rocker and bowl. Ships are 
seen on the waters of the Sacramento, and the snowy peaks 
of the Sierra Nevada form a fitting background. The legend 
" Eureka " is surmounted by thirty-one stars, the last repre- 
senting the new State of California. 



k 



1 Browne's Deb., 304, 322-3, 466-7 ; cf. Hittell, II, 773, 



CHAPTER ly. 
The Constitution Completed. 

The Constitutional Convention completed its labors on 
Saturday, October 13, 1849, under circumstances highly 
dramatic. "With the dawning of that day of beauty and 
sunshine dawned a new era for California.^ 

The day and night preceding the final adjournment exceeded 
in social interest the Convention's entire previous term of exist- 
ence. An elaborate ball was given on the last night, and all 
were brought to a happy and congratulatory mood.^ The 
perplexing questions of the Convention were all settled, and 
throughout the various elements of the heterogeneous assembly 
there was evolved a general harmony. 

The members had, after some disagreement, voted them- 
selves compensation at the rate of $16.00 per day and $16.00 
for every twenty miles of travel ; and the President's per 
diem was fixed at $25.00.^ In view of the times and oppor- 
tunities this was moderate. The officers of the Convention 
were liberally provided for, their per diem allowance rang- 
ing from Secretary, $28.00, to Page, $4.00.* The sum of 
),000 was voted to J. Ross Browne, stenographic re})orter. 



^ Bayard Taylor's contemporaneous account of the Closing Scenes of the 
Convention {Eldorado, 158-167) is most interesting and valuable. Gilbert's 
editorial on Signing the Constitution {Alta Cal, Nov. 22, 1849) is rich in 
detail, eloquent and patriotic. Cf. Sacramento Union, Sept. 9 and 12, 1859 ; 
Shuck, California Scrap Book, 67. 

2 Taylor, op. ciL, 158, et seq. » Browne's Deb., 289-92. 

4 Ibid., 107, 363-4. 

52 ■ ^ 



411] The Constitution Completed. 53 

his contract being to furnish 1000 printed copies of the entire 
proceedings in English and 250 in Spanish.^ General Riley 
was voted a salary of $10,000 per annum during his continu- 
ance in office as Executive, and Captain Halleck, $6,000 per 
annum, as Secretary of State.^ It was ordered that certified 
copies of the Constitution in English and Spanish be pre- 
sented to the Executive, and that 8,000 copies in English 
and 2,000 copies in Spanish be printed and circulated.^ The 
valuable services of Honorable Robert Semple, President of 
the Convention, were duly recognized^ by the unanimous 
adoption of a vote of thanks ; and the kindness and courtesy 
which marked the intercourse of General Riley with members 
were likewise remembered. Provision was made for the trans- 
mittal to General Riley of a copy of the Constitution, with 
the request that he forward the same, at the earliest oppor- 
tunity, to the President of the United States.^ Mr. Hamilton 
was employed for five hundred dollars to engross the Consti- 
tution upon parchment.^ The rhetorical, optimistic Address 
to the People, presented by Steuart, was unanimously adopted,^ 
and all was in readiness for the formal signing of the Constitution. 
" At a few minutes past three, preliminary matters having 
been disposed of, the delegates commenced the signing. Scarcely 
had the first man touched his pen to the paper when the loud 
booming of cannon resounded through the hall. At the same 
moment the flags of the different Head-Quarters, and on board 
the shipping in the port, were slowly unfurled, and run up. 
As the firing of the national salute of thirty-one guns proceeded 
at the fort, and the signing of the Constitution went on at the 
hall, the captain of an English bark then in port paid a most 
beautiful and befitting compliment to the occasion and the 
country, by hoisting at his main the American flag above 
those of every other nation, making, at the moment that the 
thirty-first gun was fired, a line of colors from the main truck 
to the vessel's deck. And when, at last, that thirty-first gun 



1 Browne's Deft., 163-4. "^ Ihid.,4n^. ^ Ibid., 462. ^ Ibid., 47 S-4. 
5 Ibid., 473. 6 Ibid., 475. ^ Ibid., 474-5. 



54 The Genesis of California's First Constitution. [412 

came — the fikst gun for California ! — three as hearty 
and as patriotic cheers as ever broke from human lips, were 
given by the Convention for the New State." ^ 

A most affecting part of the day^s proceedings occurred 
after the Convention had adjourned sine die. The members 
in a body repaired to General Riley^s house, where, after a 
cordial greeting, the pioneer among pioneers. Captain Sutter, 
on behalf of the Convention, expressed gratitude for the aid 
and cooperation given by the Executive. The GeneraPs reply 
was ^' 2l simple, fervent, and eloquent recital of a patriotic 
desire for the good of California," ^ concluding with a rare 
tribute to his Secretary, Captain Halleck. 

1 Alta Cal, Nov. 22, 1849. 

^ Ibid. I quote these brief addresses from Browne's Deb., 476-7. Sutter 
to Riley : " General : I have been appointed by the delegates elected by 
the people of California to form a Constitution, to address you in their 
names and in behalf of the whole people of California, and express the 
thanks of the Convention for the aid and cooperation they have received 
from you in the discharge of the responsible duty of creating a State Gov- 
ernment. And, sir, the Convention, as you will perceive from the official 
records, duly appreciate the great and important services you have rendered 
to our common country, and especially to the people of California, and 
entertains the confident belief that you will receive from the whole people 
of the United States, when you retire from your duties here, that verdict 
so grateful to the heart of every patriot : ' Well done, thou good and 
faithful servant.' " 

Riley's reply : " Gentlemen : I never made a speech in my life. I am a 
soldier — but I can feel; and I do feel deeply the honor you have this day 
conferred upon me. Gentlemen, this is a prouder day to me than that on 
which my soldiers cheered me on the field of Contreras. I thank you all 
from my heart. I am satisfied now that the people have done right in 
selecting delegates to form a constitution. They have chosen a body of 
men upon whom our country may look with pride; you have formed a 
constitution worthy of California. And I have no fear for California while 
her people choose their representatives so wisely. Gentlemen, I congratu- 
late you upon the successful conclusion of your arduous labors ; and I wish 
you all happiness and prosperity." After interruption by cheers he con- 
cluded: "I have but one thing to add, gentlemen, and that is, that my 
success in the affairs of California is mainly owing to the efficient aid 
rendered me by Captain Halleck, the Secretary of State. He has stood by 
me in all emergencies; to him I have always appealed when at a loss 
myself ; and he has never failed me." 



413] The Constitution Completed, 65 

The Constitution was completed, and California was already 
a State. The Americans were proud to have erected a great 
Commonwealth on the shore of the Pacific ; the delegates of 
whatever nationality had become Calif ornians ; ^ the native 
members joined in the spirit of the occasion, and were at last 
convinced that *^they were conquered but to become the 
brothers and friends of the conquerors/'^ 

The first Constitution of California was not one of those 
documents that " spring full-armed from the heads of Olym- 
pian conventions : " ^ it was not pretended indeed to originate 
a constitution, but from existing chaos to create a system of 
fundamental law by selecting from all republican forms of 
government the good and applicable.* Gwin, with politic 
foresight, had brought with him a copy of Iowa's Constitu- 
tion of 1846, and this he proposed as a model for the present 
Constitution.^ For a time, since there was great dearth of 
reference books, it seemed as though this model might be 
closely followed. But other State Constitutions were obtained, 
and that of New York soon became a favorite.^ The authority 
of the various State Constitutions very naturally had a most 
important influence with the Convention,^ although some 
members had an aversion to precedents and desired to create 
a constitution having an original stamp.^ Hastings proposed 
the Constitution of the United States as a guide, since he 
urged, "the record of the debates on that Constitution 
embraced the principles of all the State Constitutions.''^ 
Notwithstanding the scarcity of reference books, precedents, 
either directly or indirectly consulted, were very numerous. 
Ord had seen the entire thirty State Constitutions;^^ and 



^ Of. Address to the People, Browne's Beb., 474. 

2 Aha CaL, Nov. 22, '49 ; cf. Taylor, Eldorado, 166. 

3 Jameson, J. H. U. Studies, IV, 196. 

* Cf. Gwin's remark, Browne's Deb., 116. ^ Ibid., 24. 

« Cf. Evening Post [S. F.J, June 22, 1878, I, 3. 
' Cf. Shannon, in Browne's Deb., 143. 
8 Ibid., 33, 51, 379. 9 Ibid., 28. 



56 The Genesis of California's First Constitution. [414 

besides constant reference to individual States/ the English 
Constitution and the Mexican law were cited.^ 

The Declaration of Rights reported by the committee con- 
sisted of sixteen sections, the first nine of which were copied 
from New York and the last seven from lowa.^ The changes 
made were favorable to Iowa, but in general the article, with 
the addition of several sections, was approved as reported. 
The influence of the Constitutions of New York and Iowa is 
easily apparent in almost every article of California's Constitu- 
tion : other States, as Michigan, Virginia, Louisiana, and 
Mississippi, while leaving an influence, are not at all to be 
compared to the two great models. An evidence of the Con- 
vention's wisdom is its close adherence to well selected models, 
embodying fundamental laws and principles whose soundness 
had been thoroughly tested. It would have been extremely 
hazardous and probably disastrous for an assembly of such 
heterogeneous personnel, many of the delegates being unused to 
legislation, to venture upon really new constitution making. 

Yet a high order of skill was required to bring to comple- 
tion a satisfactory Constitution for a commonwealth whose 
history was absolutely unique and whose early admission 
into the Union was seen to be extremely doubtful. It was 
fortunate that the Convention was ruled by no demagogue, 
no faction, no party. The mixed character of the personnel 
proved a safeguard.^ The claims of Northern sentiment and 



1 Browne's Deb., 24, 31, 34, 36, 50, 143, et passim. 

2 Ibid., 36, and 37, 314, et passim. 

■■* It is commonly stated, following Gwin's remark (Browne's Deb., 31) 
that eight sections were copied from each State. A comparison of docu- 
ments shows the error. Section 9 of California is an exact copy of Section 
10 of New York and does not appear in Iowa's Declaration of Rights. The 
divorce and lottery clauses, however, are to be found in Article III, Sections 
28-29 of Iowa's Constitution. For the Constitution of '46 of New York, 
see Poore's Charters and Constitutions, 1351, et seq. Poore has omitted 
Iowa's '46 Constitution, reprinting by mistake the Constitution of '57. Cf. 
lb., 537 et seq., and 552, et seq. Iowa's '46 Constitution is in Parker, Iowa 
As It Is [1856], pp. 207-234. 

* Cf. Bancroft, VI, 303. 



415] The Constitution Completed, 57 

Southern chivalry had to be regarded; ardent Americans, 
fresh from 'Hhe States," were tempered by older pioneers 
and Hispano-Californians ; all were compelled to submit to 
repeated compromise, and thus a moderate, judicial and work- 
able Constitution was created. 

The achievement illustrates the great capacity of the Ameri- 
can people for self-government. The Constitution offered to 
the citizens of California for their consideration and their 
votes sprang immediately into great favor, and the members 
of the Convention were warmly praised for having done their 
work faithfully and ^^ adjourned with unimpaired good will."^ 
The document received the highest commendations from all 
sources, as the ^' embodiment of the American mind, throw- 
ing its convictions, impulses, and aspirations into a tangible, 
permanent shape.'' ^ 

It does not lie within the province of this paper to present 
a detailed analysis of California's first Constitution ; its salient 
features have already been sufficiently indicated. It made Cali- 
fornia a free State. It was advanced, liberal, and thoroughly 
democratic : founded upon social and political equality, it was 
enlightened in its provisions for education and catholic in 
its guaranty of religious freedom. All political power was 
declared to be inherent in the people, and all officers of the 
government were made elective. Although the achievement 
of an assembly extremely heterogeneous and in the main 
unused to law making, it embodied the principles of the best 
political and jurisprudential philosophers ; and, contrary to 
the expectation of some of its framers,^ it endured for thirty 
years as the fundamental law of the 

Empire State of the Pacific. * 

^ Alia Gal, Oct. 25 and Nov. 1 ; Placer Times, Nov. 3, 1849. The Con- 
stitution was ratified by the people on Nov. 13 by an almost unanimous, 
though small, vote. The day was very stormy. 

^Colton, Three Years in CaL, 411. Cf. Yon Hoist, III, 463; Bancroft, 
VI, 302-3; Taylor, Eldorado, 148, et seq.; Frost, 125; Browne, Am. Ter. 
Pioneers, 56 ; Fitch, Century, XL, 787 ; M'Gowan's Guide Book, Gal, 165, etc. 

3 Browne's Deb., 129, 273. 



BIBLIOGRAPHY. 



Alia California, 1849. 

Annals of San Francisco (Soule, Gilion, and Nisbet). 

Bancroft (H. H.), History of California, V and VI. 

California Inter Pocula. 

Popular Tribunals, I. 

Benton, Thirty Years' View. 

Bidwell, Articles in Overland Monthly and Century, and Private Letter. 

Browne's Debates in the Convention of California [1850]. 

Burnett, Recollections and Opinions of an Old Pioneer [JS". Y., 1880.] 

Californian: File, Aug. 15, 1846, to May 6, 1847; and May 22, 1847, to 

Nov. 11, 1848. 
California Star: Jan., 1847, to June, 1848. 
Calhoun, Works, IV. 

Century Magazine; Articles by Bidwell, Eoyce, Shinn, Fitch, Frdmont. 
Colton, Three Years in California [N. Y., 1850]. 
Congressional Documents, 1846-1850; especially California Message and 

Correspondence, 1850. 
Congressional Globe, 1846-49. 
Crane, Past, Present, and Future of the Pacific. 
Cronise, Natural Wealth of California. 
Cutts, Conquest of California and New Mexico [1847]. 

Constitution and Party Questions. 

Curtis, Life of Webster, II. 

Daily Evening Bulletin [S. F.], 1878. 

Daily Evening Post [S. F.], 1878. 

Davis (W. H.), Sixty Years in California. 

First Annual, Territorial Pioneers [S. F., 1877]. 

Fremont, Memoirs. 

Frost (John), History of the State of California. 

Greenhow, History of Oregon and California [1847]. 

Harlan, California, '46 to '88. 

Hittell (T. H.), History of California, II. 

Jameson, The Constitutional Convention. 

M'Gowan and Co., Guidebook "California" [London, 1850]. 

58 



417] Bibliography, 59 ' 

\ 

Moses, Municipal Government in San Francisco, Johns Hopkins University ] 

Studies, VII. « 

Norman (Lucia), Popular History of California. 'i 
Overland Monthly ; Articles by Bid well, Willey, O'Meara, Vassault. 

Phelps, Contemporaneous Biography of California's Kepresentative Men. | 

Placer Times, 1849-1850. J 
Poore's Charters and Constitutions of the United States. 

Rhodes, History of United States. | 

Eoyce, California. j 

Sacramento Daily Union, 1859. ; 

Sacramento Daily Record- Union, 1884. ^: 

Schouler, History of United States, IV and V. ' 
Sherman, Memoirs. 

Shuck, Representative Men of the Pacific. i 

California Scrap Book. j 

Taylor (Bayard), Eldorado [N. Y., 1850]. j 

Treaties and Conventions Concluded between the United States and other \ 

Powers. j 
Von Hoist, History of United States, II and III. 

Willey, Thirty Years in California [S. F., 1879]. ' 
The Constitutional Convention in Monterey. Reprint in Sacramento i 

Themis, Nov. 11, 1893, from Pacific, 1879. J 



IX 



Benjamin Franklin as an Economist 



JOHNS HOPKINS UNIVERSITY STUDIES 



IN 



HiSTOEICAL AND POLITICAL SCIENCE 
HERBERT B. ADAMS, Editor 



History is Past Politics and Politics are Present History.— JPVeemaw 



THIRTEENTH SERIES 
IX 



Benjamin Franklin as an Economist 



By W. A. Wetzel, A. M. 



baltimore 
The Johns Hopkins Press 

PUBLISHED MONTHLY 

September, 1895 



Copyright, 1895, by The Johks Hopkins Press. 



THE FRIEDENWALD CO., PRINTERS, 
BALTIMORE. 



CONTENTS. 

PAGE 

I. Economic Works of Franklin 7 

II. Paper Money and Interest 18 

III. Wages 23 

IV. Population 25 

V. Value . , 30 

VI. Agriculture 33 

VII. Manufactures 35 

VIII. Free Trade 38 

IX. Taxation 41 

X. Franklin and the Physiocrats 44 

XI. Franklin and the English Philosophers 50 

XII. Conclusion 54 

Bibliography 57 



PREFACE. 

In the works of so versatile a writer as Franklin expres- 
sions of opinion can be found upon nearly every topic in the 
entire economic field. The purpose of this monograph has 
been not to weave together fragmentary expressions into an 
artificial whole, but rather to present such of Franklin's 
views as seem fairly entitled to the rank of economic the- 
ories. 

Emphasis has been laid upon Franklin's strictly economic 
doctrines to the neglect of his political or socio-philosophi- 
cal theories, such as the nature of civil society or the func- 
tions of the state. 

The writer also desires to thank Dr. J. H. Hollander, of 
the Johns Hopkins University, for the many valuable criti- 
cisms and suggestions made by him in the preparation of 
this monograph. 

Johns Hopkins University, May 14, 1895. 



BENJAMIN FRANKLIN AS AN ECONOMIST. 



L._ECONOMIC WORKS OF FRANKLIN. 

Probably nothing from Franklin's ready pen was written 
in a purely scientific spirit. Whatever discoveries he made, 
whatever improvements he suggested, whatever he contrib- 
uted to the literature of the day, he did it all " to extend the 
power of man over matter, avert or diminish the evils he is 
subject to, or augment the number of his enjoyments."^ 
Whether we are studying Franklin the Electrician, the Econ- 
omist, or the Politician, it is impossible to turn to any 
really finished and extended treatise, for his busy life would 
not allow the leisure necessary to construct such a work. 
His contributions to economic science must be drawn from 
various sources. There are first of all a number of essays 
containing a mixture of economics and politics. These were 
called out by the politics of the time in which they were 
written, and usually appeared in current periodicals either in 
this country or abroad. Some of them were afterwards 
reprinted and distributed by Franklin among men with 
whom they would do the most good. In order that we may 
comprehend the full import of these essays we must give 
them their proper historic setting. 

For our purpose we may divide the life of Franklin into 
three parts: (i) FrankHn the Editor, 1706-1757. It was dur- 
ing this time that Poor Richard's Almanac was published in 
connection with the Pennsylvania Gazette. With the excep- 
tion of a brief residence in London in 1754, Franklin lived 
in Pennsylvania during this period. (2) Franklin the Advo- 
cate, 1757-1775. In 1757 Franklin was sent to England by 
the Pennsylvania Assembly to present a petition to the King 
with reference to the disputes between the Proprietors and 

^ Letter to Sir Jos. Banks, President of the Royal Society, Lon- 
don, Sept. 9th, 1782, vid. Worfcs, (Bigelow ed.), vol. VIII., p. 169. 



8 Benjamin Franklin as an Economist, [426 

the Assembly. Later, as matters in the colonies grew more 
serious, he was appointed colonial agent for Massachusetts, 
New Jersey and Georgia, so that he was kept in London 
almost continuously until 1775. This period brought forth 
some of the most valuable of his economic pamphlets. (3) 
Franklin the Diplomatist, 1775-1785. During this period 
Franklin resided in France, where, one dare almost say, his 
diplomatic services contributed as much to the cause of 
American independence as did the military services of Wash- 
ington. 

Franklin was born in Boston in 1706. Seventeen years 
later we find him walking up Market street, Philadelphia, 
"with a roll under each arm, and eating a third," as he 
expresses it in his Autobiography^ 

The year that Franklin arrived in Philadelphia marked the 
first issue of paper money in Pennsylvania. Many erroneous 
views were still held by the statesmen of his time concerning 
trade and money. Only that country was considered pros- 
perous which could show a balance of trade in its favor. It 
was deemed unwise to allow gold or silver coin to be ex- 
ported from the country. Colonies were considered bene- 
ficial to the mother country only in so far as they exchanged 
gold and silver coin for the finished products of the mother 
country, while trade laws were passed which attempted to 
mark the only channels through which colonial trade could 
flow. When there is added to this fact increased demand 
for money in our new and rapidly developing country, one 
can easily see why the colonists were continually clamoring 
for more currency. Massachusetts led the way in 1690.^ 
New York, Rhode Island and South Carolina quickly fol- 
lowed. Pennsylvania followed very cautiously in 1723.' 
Two issues were made in this year, one of £15,000, the other 

^Bigelow edition, p. 112. 

^ Yid. Proceedings of Massachusetts Historical Society for 1862-1863, 
p. 428. 

^ For a full account of the early history of paper money in Penn- 
sylvania, vid. Proud's History of Pennsylvania, vol. II., p. 171 et 
seg. 



427] Economic Works of Franklin. 9 

of £30,000. £4,000 of this currency were intended to pay the 
debts of the colony. The rest was issued for the benefit of 
the people. In order that the currency might be amply pro- 
tected it was secured in the loan ofHce either by a deposit of 
plate or by a mortgage on real estate or ground rents. In 
no case did the amount issued to an individual borrower 
exceed one-half of the value of the security deposited. In 
order that the benefit might be as general as possible, no one 
could borrow more than iioo. Borrowers were charged 
5^ interest, and were compelled to return to the treasury one- 
eighth of the principal annually. All the notes were to be 
called in at the end of eight years, that is, in 173 1. As 
early as 1729 men began to discuss the desirability of another 
issue. The arguments for and against a cheap money used 
at that time bear a strong resemblance to the arguments on 
the same subject current in the papers at the present day. 
It was at this time that Franklin's Modest Inquiry into the 
Nature and Necessity of a Paper Currency appeared.^ Al- 
though written in the spirit of the practical politician, it con- 
tains, as we shall see, some sound economic principles. Our 
respect for Franklin's sagacity is increased when we remem- 
ber that at that time he was only twenty-three years old. 

The state of afifairs in Pennsylvania at the beginning of 
the eighteenth century is best described in Franklin's own 
words :* 

"About this time there was a cry among the people for 
more paper money, only £15,000 being extant, and that soon 
to be sunk. The wealthy inhabitants opposed any addition, 
being against all paper currency from the apprehension that 
it would depreciate as it had done in New England, to the 
injury of all creditors. We had discussed this point in our 
Junto,* where I was on the side of an addition, being per- 

^ Ingram iJSistory of Political Economy, p. 171) incorrectly dates 
this publication 1721. 

^ Tid. AutoMography, (Bigelow ed.), p. 185. 

* The Junto was a debating society organized in 1720 by Frank- 
lin among his Philadelphia friends "for mutual improvement." 
Half a century later it became the American Philosophical So- 
ciety, of which Franklin was the first President. This society 
contributed much to the advancement of pure science. 



10 Benjamin Franklin as an Economist. [428 

suaded that the first small sum struck in 1723 had done 
much good by increasing the trade, employment and num- 
ber of inhabitants in the province. . . . Our debates pos- 
sessed me so fully of the subject that I wrote and printed an 
anonymous pamphlet on it, entitled ' The Nature and Neces- 
sity of a Paper Currency.' It was well received by the com- 
mon people in general, but the rich men disliked it, for it 
increased and strengthened the clamor for more money, and 
they happening to have no writers among them that were 
able to answer it, their opposition slackened and the point 
was carried by a majority in the House." He adds, very 
naively : " My friends there, who considered I had been of 
some service, thought fit to reward me by employing me in 
printing the money, a very profitable job and a great help 
to me.'' 

The next twenty-five years of colonial history show 
plainly the beginnings of the political trouble which came to 
a crisis in 1776. Through this entire period we find Frank- 
lin, as a loyal subject of Great Britain, doing all in his power 
to strengthen the tie between the mother country and the 
colonies. Now we find him pledging his own property for 
the payment of horses and wagons for the Braddock cam- 
paign. Now he is a delegate to the Albany Convention, 
where he suggests a Plan of Union for the colonies.^ 

One of the bones of contention between England and her 
colonies was the subject of manufactures. England had for 
many years excluded the colonies from the carrying trade. 
As early as 1724 complaint was entered by British ship- 
builders, supported by the Board of Plantations, that their 
trade was declining through the increase of ship-building in 
New England. It was maintained that workmen were emi- 
grating and that there was " danger that this most important 
trade for the maintenance of our navy would be transplanted 

^ This plan of union, wMch was one of his pet schemes, " the 
Assemblies did not adopt, as they all thought there was too much 
prerogative in it; and in England it was judged to have too much 
of the democratic.'' 



429] Economic Works of Franklin. 11 

to the New England colonies."^ English statesmen advo- 
cated earnestly the policy of prohibiting colonial manufac- 
tures. It was argued that the colonists should raise raw 
materials and possibly manufacture enough for their own 
consumption, but not for the general market. The exporta- 
tion of woolen manufactures from one colony to another was 
even prohibited by Parliament in 1699. The manufacture 
of hats, the material for which was abundant in the New 
England colonies, was also most vigorously restricted. In 
1750 a committee of the House of Commons, with Charles 
Townshend as its chairman, undertook to inquire into the 
subject of iron manufactures. The ironmongers and smiths 
of Birmingham prayed that from " compassion to the many 
thousand families in the kingdom who otherwise must be 
ruined, the American people" might be subjected to such 
restrictions " as may secure forever the trade to this country." 
Townshend's committee introduced a bill which allowed 
American ore to be admitted free of duty, but which forbade 
the erection of "any mill for slitting or rolling iron, or any 
plating forge to work with a tilt-hammer, or any furnace for 
making steel," because the "nailers in the colonies could 
afiford spikes and large nails cheaper than the English." The 
proposal to demolish every slitting mill in America was lost 
by a bare majority. As a compromise the House insisted 
that no more new mills be erected and that every existing 
mill must give a full account of the extent of its manufac- 
tures. This was in 1750. In 1751 appeared a strong article 
from Franklin's pen, entitled Observations concerning the 
Increase of Mankind and the Peopling of Countries!' This 
essay marks an important epoch in the history of the theory 
of population. Godwin, Malthus, Adam Smith, all used it 
in treating this subject. Yet it was not population, but 
manufactures, that called out the article. Not the " love of 



^ yid, Curmingham's Growth of English Industry and Commerce, 
vol. II., p. 329; also Bancroft's History of United States, ed. of 
1883, vol. II., p. 356. 

^Yid. Works, (Bigelow ed.), vol. II., p. 223. 



12 Benjamin Franklin as an Economist. [430 

truth," but Townshend's bill, inspired Franklin to write this 
paper. After showing that in America " our people must 
at least be doubled every twenty years," he insists that 
"notwithstanding this increase, so vast is the territory of 
North America that it will require many ages to settle it 
fully ; and till it is fully settled, labor will never be cheap here^ 
where no man continues long a laborer for others, but gets 
a plantation of his own; no man continues a journeyman to 
a trade, but goes among those new settlers and sets up for 
himself. Hence labor is no cheaper now in Pennsylvania 
than it was thirty years ago, though so many thousand labor- 
ing people have been imported." On account of this dear- 
ness of labor, he argues that England need not fear Ameri- 
can competition in manufactures in foreign markets. There- 
fore, he says, " Britain should not too much restrain manu- 
factures in her colonies. A wise and good mother will not 
do it. To distress is to weaken, and weakening the children 
weakens the whole family."^ He says elsewhere:^ " It is the 
multitude of poor without land in a country, and who must 
work for others at low wages or starve, that enables under- 
takers'* to carry on a manufacture." 

Before we close the first period of Franklin's life we must 
speak of one more article. In 1732 appeared the first num- 
ber of Poor Rzc/iard's Almanac. It was published annually 
thereafter for twenty-five years. These almanacs are a 
strange combination of sense and nonsense. In one of 
them he makes the following apology for its miscellaneous 
character: "Be not thou disturbed, O grave and sober 
reader, if among the many serious sentences in my book 
thou findest me trifling now and then and talking idly. In 

^ This paper was printed in Boston in 1755. Tlie same year it 
was reprinted in London. In 1760 it appeared in the Annual 
Register, of whicti Edmund Burke was the editor. 

^Interest of Great Britain Considered, Works, (Bigelow ed.), vol. 
III., p. 86. 

'■" On the use of the word undertaker, vid. also Works, (Bigelow 
ed.), vol. IV., p. 337. 



4:31] Economic Works of Franklin. 13 

all the dishes I have hitherto cooked for thee, there is solid 
meat enough for thy money. There are scraps from the 
table of wisdom that will, if well digested, yield strong nour- 
ishment for the mind. But squeamish stomachs cannot eat 
without pickles, which it is true are good for nothing else 
but to provoke an appetite. The vain youth that reaas my 
almanac for the sake of an idle joke will perhaps meet with 
a serious reflection that he may ever after be the better for."^ 
The almanac was filled with proverbial sentences " such as 
inculcated industry and frugality." In 1757 these proverbs 
were collected by Franklin and published in the form of a 
" harangue of a wise old man to the people attending an auc- 
tion." The discourse was called the Way to Wealth."^ It 
has been said that this " wonderfully popular piece " has 
been oftener printed and translated than any other work 
from an American pen.^ It is a discourse on economic con- 
duct. 

We next find Franklin in a broader field of action. As 
has already been stated, in 1757 he was sent to England to 
guard the interests of Pennsylvania against the encroach- 
ments of the Penn family. With the exception of a short 
visit to America in 1762, he resided in London as the colo- 
nial agent of four of the colonies until 1775. His reputa- 
tion as a scientist and a philosopher had preceded him. 
Everywhere in Europe his friendship was courted by the 
scholars of his day. His name was added to the list of 
honorary members in most of the learned societies of Eu- 
rope. Yet he was ever the same unassuming citizen, always 
watching for an opportunity to use his political and eco- 
nomic knowledge for the good of the American colonies. 

As the last war with France was drawing to a close, it 
became plain that England would not be able to retain both 

^TForfcs, (Sparks ed.), vol. I., p. 122. 

2 yHorlzs, (Bigelow ed.), vol. I., p. 441. 

^ P. L. Ford, BiUiograpTiy of Franklin, p. 55. Ford gives more 
than one hundred and fifty editions, printed in every modem 
European tongue. He adds that his list is far from complete. 



14 Benjamin Franklin as an Economist. [432 

Canada and Guadaloupe. Which should she retain, and 
which should she restore to France? The question had 
been discussed for some time by the English statesmen, with 
possibly the advantage on the side of giving up Canada. 
Franklin saw the great need of ridding the American conti- 
nent of French influences both in Canada and Louisiana. 
So appeared in 1760 his Interest of Great Britain considered 
with Regard to her Colonies and the Acquisitions of 
Canada and Guadaloupe^ It is safe to say that the reten- 
tion of Canada by Great Britain was partly due to the argu- 
ments used in this essay. It was because Britain feared that 
manufactures would spring up in America if the colonies 
became densely settled that she was willing to extend her 
colonial territory. This pamphlet contains many interest- 
ing statements concerning manufactures and population. 

The American paper currency had never become very 
popular with the English merchants. In both New Eng- 
land and the Carolinas they had lost very heavily through 
its depreciation. So strong did the opposition to these bills 
become that in 1764 the English Board of Trade, of which 
the vacillating Hillsboro was chairman, reported against the 
further emission of paper bills of credit in America as legal 
tender. Franklin again appeared as the champion of cheap 
money, this time not for Pennsylvania alone, but for all the 
colonies. He was then almost sixty years of age, and was 
respected by all for his practical judgment, wide experience 
and close observation of commercial matters. His Remarks 
and Facts Relative to the American Paper Money,' written: 
in reply to Hillsboro's report, is conservative in spirit and 
is an able, although politically unsuccessful, plea for the 
colonial currency. 

One other article worthy of mention falls within this 
period of Franklin's life. In 1769 he published his Positions 

^ y^OTlii, (Bigelow ed.), vol. III., p. 69. 

==yi(?. IVorU, (Bigelow ed.), vol. IV., p. 79. The title of this 
article as well as of others is not the same in the different 
editions of Franklin's works. 



433] Economic Works of Franklin. 15 

to be Examined Concerning National Wealth.'^ This paper 
contains the strongest statements of physiocratic doctrine to 
be found in all of Franklin's works, and shows plainly the 
influence of the French economists. Franklin visited France 
for the first time in the fall of 1767. In the summer of 1768 
we find him acknowledging the receipt of a collection of 
Quesnay's works and Dupont's PhysiocratieJ" In the spring 
of 1769 appeared his own physiocratic work, the Positions to 
be Examined Concerning National Wealth. Of Franklin's 
relations with the Physiocrats more will be said later in this 
essay. 

Franklin returned to America in 1775. The following 
year he was sent to France to solicit aid for the colonists in 
their struggle for independence. We now have Franklin 
the Diplomatist. His writings assume more of a political 
than an economic character. One would naturally expect 
to find him more intimately connected than ever with the 
French economists. But a study of his works shows that 
all his time was taken up with the manifold duties that de- 
volved upon him as the agent of the colonies not only in 
France but in all Europe. Then, too, the Physiocrats as 
well as Franklin were soon forced by the political turmoil of 
the times to leave the quiet fields of philosophy and enter 
the more active arena of politics. 

A few articles from Franklin's pen, falling within this 
period, deserve notice in this connection: (i) Great Britain 
and the United States compared as regards a Basis of 
Credit^ was written to show that it was safer to lend money 
to the United States than to England; (2) The Reflections 
on the Augmentation of Wages which will be occasioned 
in Europe by the American Revolution"^ is interesting, be- 
cause it foreshadows the arguments by which the wage fund 

^Tia. WorM, (Bigelow ed.), vol. IV., p. 235. 
^Tia. Worlis, (Bigelow ed.), vol. IV., p. 194. 
» Yid. Y^orU, (Bigelow ed.), vol. VI., p. 43. 
"•yid. ^/^Qr}c8, (Bigelow ed.), vol. X., p. 46. 



16 Benjamin Franklin as an Economist [434 

theory was overthrown; (3) Tke Internal State of America ^ 
and the (4) Information to those who would remove to 
America^ were written to draw European emigrants to 
America; (5) the Paper Money of the United States'^ is a 
summary of the history of American paper money. 

Thus far I have spoken of the more formal of FrankHn's 
economic works. But as valuable as any of these for the 
economic student are some of Franklin's letters. Among 
his correspondents were the most eminent philosophers of 
his age. Now and then one will find a long letter of an 
almost purely economic character. Such for example is the 
letter to Benjamin Vaughan, written in 1784. We find 
in this letter the distinction frequently made by the early 
economists between productive and unproductive consump- 
tion, as well as some sound economic principles concerning 
luxury.' Franklin's views on the subject of population crop 
out in a letter to John Alleyne, written in reply to the 
question at what age a man should marry.* But not all of 
Franklin's letters are so rich in material for the economic 
student. For example, in a letter to Jared Elliot,'' 1747, he 
discusses the origin of springs, sea-shells imbedded in rock, a 
new kind of grass seed, steel saws, mills for grinding flax- 
seed, the cultivation of hemp, and, last of all, the economic 
effect of import duties. Connecticut had passed a law levy- 
ing a tax of 5^ on certain goods imported from other colo- 
nies. Franklin's arguments against the tax in this letter 
largely anticipated later writers on the same subject. 

It has been said by Parton that the reason Franklin was 
not asked to write the Declaration of Independence was that 
he would not have been able to do so without inserting a 
joke here and there. Franklin often resorted to humor to 
teach his contemporaries some important economic lesson. 

^ Yid TForfcs, (Bigelow ed.), vol. X., p. 63; vol. VIII., p. 172. 
2 y%a. Tforfcs, (Bigelow ed.), vol. VII., p. 339. 
^ Tid. Worlcs, (Bigelow ed.), vol. X., p. 11. 
* Tia. Worlcs, (Bigelow ed.), vol. IV., p. 196. 
^ Vid. Works, (Bigelow ed.), vol. II., p. 75. 



435] Economic Works of Franklin. 17 

Note, for example, his Wail of a Protected Manufacturer .*' 
"I am a manufacturer and was a petitioner for the act to 
encourage and protect the manufacturers of this state. I 
was very happy when the act was obtained, and I immedi- 
ately added to the price of my manufactures as much as it 
would bear so as to be a little cheaper than the same article 
imported in paying the duty. By this addition I hoped to 
grow richer. But as every other manufacturer whose wares 
are under the protection of that act has done the same, I 
begin to doubt whether, considering the whole year's ex- 
penses of my family, with all these separate additions which 
I pay to other manufacturers, I am at all a gainer. And I 
confess I cannot but wish that except the protecting duty on 
my own manufacture, all duties of the kind were taken off 
and abolished." In a similar strain is written the article On 
the Price of Corn and Management of the Poor^ This 
article appeared first in the London Chronicle in 1766. Later 
it figured as one of fifteen papers on economic subjects 
in the Lord Overstone Collection of Scarce and Valuable 
Economical Tracts, edited by J. R. McCuUoch in 1859. 
It was again reprinted in France in the Ephemerides du 
Citoyen, a physiocratic journal. " I am one of that class of 
people,'' says the author, " that feeds you all, and at present is 
abused by you all; in short, I ami 3. farmer P The article was 
written to show how unjust were the laws forbidding the 
farmers to export their products. If it is a good principle 
to prohibit the exportation of a commodity, says the farmer, , 
stick to the principle and prohibit the exportation of cloth, 
leather, shoes, iron and manufactures of all sorts. Then 
commodities ought to be cheap enough. Against this arti- 
ficial attempt to cheapen commodities, the farmer is made to 
say that " some folks seem to think they ought never to be 
easy till England becomes another Lubberland, where it is 
fancied that streets are paved with penny-rolls, the houses 
tiled with pancakes, and chickens ready roasted cry ' Come 
eat me.' " The paper throughout is an able defense of the 
agricultural class against the popular prejudices of that day. 

^ Yid. Works, (Bigelow ed.), vol. X., p. 118. 
=* Yid. Worlcs, (Bigelow ed.), vol. IV., p. 64. 



IL— PAPER MONEY AND INTEREST. 

Franklin, in the article on the Nature and Necessity of a 
Paper Currency, lays down a number of monetary principles 
which are in substance as follows: (i) A great want of 
money in any trading country occasions interest to be at a 
very high rate. Conversely, a plentiful currency will occa- 
sion interest to be low. (2) Want of money in a country 
reduces the price of its produce. Conversely, a plentiful cur- 
rency will cause the trading produce to bear a good price. 
Inasmuch as prices adjust themselves to the amount of 
money in the country, this proposition is true. (3) Want of 
money in a country discourages laborers and handicrafts- 
men (who are the chief strength and support of the people) 
from coming to settle in it; and induces many that were set- 
tled in it to leave the country and seek entertainment and 
employment in other places where they can be better paid. 
Conversely, a plentiful currency will encourage great num- 
bers of laborers to come and settle in the country. (4) Want 
of money in the province occasions a greater consumption 
of English and European goods in proportion to the num- 
ber of people than there would otherwise be. Conversely, 
a plentiful currency will occasion a less consumption of 
European goods in proportion to the number of the people.^ 

In the statement of these principles Franklin displays the 
politician rather than the economist. He loses sight entirely 
of the distinction between a medium of exchange and capi- 
tal. Yet it is safe to say that these " laws," though false in 
many particulars, helped in no small measure to carry his 
point. As Franklin says,^ there was no one able to answer 
him, " the opposition slackened," and the bill to increase the 
paper currency of Pennsylvania "was carried by a majority 
in the House." 

^yi(Z. M^orlis, (Bigelow ed.), vol. I., p. 360. 
^ AutoUography, (Bigelow ed.), p. 186. 



437] 



Paper Money and Interest, 



19 



In determining the value of money, Franklin makes a dis- 
tinction between coin and bullion which shows a careful 
study and a comprehension of monetary problems such as 
are seldom found among students twenty-three years old. 
He says :^ "To make a true estimate of the value of money 
we must distinguish between money as it is bullion which is 
merchandise, and as by being coined it is made a currency. 
For its value as a merchandise and its value as a currency 
are two distinct things, and each may possibly rise and fall 
in some degree independent of the other.^ Thus if the quan- 
tity of bullion increases in a country it will proportionately 
decrease in value; but if at the same time the quantity of 
current coin should decrease (supposing payments may not 
be made irt bullion), what coin there is will rise in value as a 
currency." " Money as bullion or as land," he continues, " is 
valuable by so much labor as it costs to procure that bullion 
or land. Money as a currency has an additional value by 
so much tinie and labor as it saves in the exchange of com- 
modities." If money as a currency saves one-fourth of the 
time and labor of a country (which under a system of barter 
[would be spent in hunting suitable persons with whom to 
[exchange), it must on that account have one-fourth added to 
its original value. 

This is a very loose and broad statement, such as the eco- 
nomic writers of his day were prone to make. It cannot be 
^accepted without limitation. But it is interesting as show- 
ing that Franklin was on the trail of that principle in finance 
, which later became the corner-stone of Ricardo's theory of 
money." 

On the conditions assumed by Ff-anklin, that the State 
.alone coins money, this distinction between gold as bullion 
jand gold as coin becomes of the utmost importance. Upon 



^ Yid. Works, (Bigelow ed.), vol. I., p. 377. 

^ Vid. also Ricardo, Political Economy, 1st American edition, p. 
380. 

' Cf. Walker, Political Economy, p. 147; also Prof. Smart, Fort- 
nightly Revietv, November, 1893, Is Money a mere Commodity? 



20 Benjamin Franklin as an Economist. [438 

it depends the possibility of a seigniorage above cost of 
coinage and of a paper currency. And Franklin clearly 
saw this. We must bear in mind that at this time he was 
not working in the interest of pure science. He had, to 
quote one of his own sayings, " an ax to grind." He was 
framing an argument for the issuing of paper money by the 
State. 

We have mentioned the report of the English Board of 
Trade of 1764.^ It had been urged in this report: (i) That 
the paper currency carried the gold and silver out of the 
colonies ; (2) That the English merchants trading in America 
had lost through the use of this currency; (3) That the re- 
strictions of paper money in New England had benefited 
trade very much in that region; (4) That every medium of 
trade should have an intrinsic value; (5) That debtors in the 
Assemblies made paper money with fraudulent views; (6) 
That in the middle colonies, where the credit of the paper 
money was the best, the bills did not retain their nominal 
value. 

Most of these declarations are questions of fact. One 
only is a question of theory. Must the medium of exchange 
have intrinsic value? On this point Franklin speaks with 
no uncertain voice. He maintains^ that men will not hesi- 
tate to take anything as full payment of debt provided they 
have the assurance that they can repass the article at the 
same value at which they received it. At that very time, 
said Franklin, three pennyworth of silver were passing in 
England for sixpence. For this difference between the 
nominal and intrinsic value there was nothing, not even 
paper. And as Ricardo so plainly demonstrates, a paper 
currency is nothing more than money, for the coining of 
which the State charges not one, nor five, but one hundred 
per cent, seigniorage. 

^Yid. p. 14. 

"Remarks and Facts Relative to the American Paper Money, vid. 
p. 14, supra. 



439] Paper Money and Interest. 21 

As to the last charge, that even in the middle colonies the 
bills did not retain their nominal value, but depreciated 
whenever the quantity was increased, Franklin maintained 
that the bills were as stable in value as silver. In England, 
with the changing demand for exportation, the price of bul- 
lion varied from 5s. 2d. to 5s. 8d. per ounce, a fluctuation of 
nearly ten per cent. When bullion was selling for 5s. 8d. 
per ounce, could it be said that all the coin and all the bank 
notes in England had depreciated ten per cent. ? It was only 
in this sense that Pennsylvania bills could be said to have 
fluctuated in value. With the first issue of paper money a 
silver dollar exchanged for 7s. 6d. in paper. And this ratio 
was maintained steadily for forty years, although in the 
meantime the quantity of paper bills was increased from 
ii 5,000 to £600,000. 

Bohm-Bawerk has described "Turgot as the first who 
tried to give a scientific explanation of Natural Interest on 
capital." Turgot's doctrine, as characterized by the Austrian 
economist, "bases the entire interest of capital on the pos- 
sibility always open to the owner of capital, to find for it an 
ulterior fructification through the purchase of rent-bearing 
land," and is called the fructification theory of interest."^ 
Yet it is clear that almost fifty years before the Reflections 
were published Franklin attempted to explain Natural In- 
terest in the same way as did Turgot (i 729-1 776). Turgot's 
theory is summed up as follows:^ A definite capital must 
yield a definite interest, because it may buy a piece of land 
bearing a definite rent. To take a concrete example: A 
capital of $10,000 must yield $500 interest, because with 
$10,000 a man can buy a piece of land bearing a rent of 
$500.' Franklin, it will be remembered, had been arguing 
for an increase of the paper currency. In determining the 

^ Capital and Interest, p. 63. 

^lUd., p. 64. 

' For the full statement of Turgot's views, vid. Reflections^ 
Daire edition, sec. 57 et seq. References cited in Capital and In- 
terest. 



22 Benjamin Franklin as an Economist. [440 

" natural standard of usury," he says that where the security 
is undoubted it must be equal to " the rent of so much land 
as the money lent will buy. For it cannot be expected that 
any man will lend his money for less than it would fetch him 
in as rent if he laid it out in land. . . . Now if the value of 
land is twenty years' purchase, five per cent, is the just rate 
of interest for money lent on undoubted security."^ 

Upon certain aspects of monetary theory Franklin's views 
changed with the course of political events. In the Modest 
Inquiry (1729) he held that an overissue of paper money 
was impossible. In the Paper Mo7tey of the United States 
(1781) he stated that the depreciation of the Continental cur- 
rency was due to overissue. In the Remarks and Facts 
(1767) he maintained that paper money should be a legal 
tender. In a letter to Veillard (1788) he held that "the 
making of paper money with such a sanction is a folly." In 
the Remarks and Facts he opposed interest-bearing paper 
money. In a letter to Samuel Cooper (1779) he stated that 
to prevent the depreciation of the Continental currency he 
proposed in Congress "that the bills should bear interest." 

^TForA-s, (Bigelow ed.), vol. I., p. 372. 



III.— WAGES. 

The Reflections on the Augmentation of Wages was writ- 
ten in Paris and published in the Journal d'Economie Pub- 
lique.^ The article is worthy of our consideration because 
of the stand that the author takes with reference to the preva- 
lent idea that wages must necessarily be low in a country 
which wishes to enjoy a large foreign trade. This idea, 
says Franklin, is both cruel and ill-founded. The object of 
every political society should be " the happiness of the largest 
number." And if in order to possess a large foreign trade 
" half the nation must languish in misery, we cannot without 
crime endeavor to obtain it, and it becomes the duty of the 
government to relinquish it To desire to keep down the 
rate of wages, with the view of favoring the exportation of 
merchandise, is to seek to render the citizens of a state mis- 
erable, in order that foreigners may purchase its productions 
at a cheaper rate; it is at most attempting to enrich a few 
merchants by impoverishing the body of the nation; it is 
taking the part of the stronger in that contest, already so 
unequal, between the man who can pay wages and him who 
is under the necessity of receiving them." 

But, says Franklin, while it is necessary that the price of 
goods intended for export be low, it is not necessary that 
wages be low in order that the price of commodities may be 
low. " The labor necessary to gather or prepare the article 
to be sold may be cheap, and the wages of the workman 
good. Although the workmen of Manchester and Norwich, 
and those of Amiens and Abbeville, are employed in the same 
kind of labor, the former receive considerably higher wages 
than the latter; and yet the woolen fabrics of Manchester and 
Norwich, of the same quality, are not so dear as those of 
Amiens and Abbeville." The price of an article may be 

^^m-lcs, (Bigelow ed.), vol. X., p. 46. 



24 Benjamin FranJclin as an Economist. [442 

lowered: (i) By using improved machinery; (2) By em- 
ploying intelligent and active workmen; (3) By the judicious 
division of labor. " Now these methods of reducing the 
price of manufactured articles have nothing to do with the 
low wages of the workmen. In a large manufactory, where 
animals are employed instead of men, and machinery in- 
stead of animal power, and where that judicious division of 
labor is made which doubles, nay, increases tenfold both 
power and time, the article can be manufactured and sold at 
a much lower rate than in those establishments which do 
not enjoy the same advantages; and yet the workmen in the 
former may receive twice as much as in the latter." 

Insufficient wages occasion the decline of a manufactory, 
while high wages promote its prosperity. " High wages at- 
tract the most skilful and most industrious workmen. Thus 
the article is better made, it sells better, and in this way the 
employer makes a greater profit than he could do by dimin- 
ishing the pay of the workmen. A good workman spoils 
fewer tools, wastes less material, and works faster than one 
of inferior skill ; and thus the profits of the manufacturer are 
increased still more." 

It would be idle to look for a scientific law of wages in 
Franklin's writings. Franklin very seldom formulated laws. 
In the article On the Laboring Poor he stated incidentally 
that " as the cheapness of other things is owing to the plenty 
of those things, so the cheapness of labor is in most cases 
owing to the multitude of laborers and to their underwork- 
ing one another in order to obtain employment." It is in 
this article also that Franklin made the oft-quoted statement 
that " our laboring poor receive annually the whole of the 
clear revenues of the nation." 

^1768, md. Works, (Bigelow ed.), vol. IV., p. 154. 



IV.— POPULATION. 

Through all of Franklin's works on population there runs 
the same thought, that the people will " increase and multiply- 
in proportion as the means and facility of gaining a liveli- 
hood increase."^ He describes three economic societies:^ 
that of the hunter, the farmer, and the manufacturer. In 
the first two societies people can increase only as new land 
is added to the community. " Our people," he says, " being 
confined to the country between the sea and the mountains, 
cannot much more increase in numbers, people increasing 
in proportion to their room and means of subsistence."^ 
After all the land is taken up, the hunter and the farmer 
must give way to the manufacturer, and, he adds, all the 
penal laws in the land will not be able to prevent manufac- 
tures under such circumstances. After society has reached 
the manufacturing stage there will be a rapid increase in 
population, until population again presses upon subsistence. 
When this stage is reached the population must necessarily 
remain stationary. " Europe is generally full settled with 
husbandmen and manufacturers, and therefore cannot now 
much increase in people."* 

The rate of increase of population depends on both the 
number of marriages and the age at which marriages take 
place. Franklin advocated early marriages because: (i) 
Early ones stand the best chance of happiness. Habits are 

^Interest of Great Britain Considered, vid. Works, (Bigelow ed.), 
vol. III., p. 95. 

' Referred to in Malthus' Essay on Population, 6th ed., vol. I., 
p. 36. 

' Vid. Works, (Bigelow ed.), vol. II., p. 475. This argument was 
used effectively whenever Franklin wanted colonial territory ex- 
tended. : ' ; 

* Observations concerning the Increase of Mankind and Peopling of 
Countries, Works, (Bigelow ed.), vol. II., p. 228. 



26 Benjamin Franklin as an Eco7iomist. [444 

not yet set and form more easily to each other; (2) By early 
marriages youthful dissipation is avoided; (3) Parents who 
marry late often die before the children are grown up. " Late 
children are early orphans " ; (4) Early marriages bear more 
children/ 

" The married state is the happiest state. Man and woman 
have each of them qualities and tempers in which the other 
is deficient and which in union contribute to the common 
felicity. Single and separate they are not the complete 
human being; they are like the odd halves of scissors; they 
cannot answer the end of their formation."^ 

Owing to the cheapness of land in America marriages 
are more numerous and occur earlier here than in Europe. 
Franklin preceded Malthus in pointing out the influence of 
a high standard of living on the increase of population, in 
other words, the preventive check to population. " The 
greater the common fashionable expense of any rank of 
people the more cautious they are of marriage." In cities, 
where living expenses are higher and luxuries more com- 
mon, " many live single during life, and continue servants to 
families, journeymen to trades," so that cities do not by 
natural generation supply themselves with inhabitants. 
Malthus looked upon this check as beneficial to a society, 
while Franklin considered it a great misfortune to his coun- 
try. We must remember that Franklin was influenced by 
the picture of a country suffering for the want of men ; Mal- 
thus, by the picture of a country suffering for the want of 
bread. Franklin advocated schemes for the increase, Mal- 
thus for the decrease of population. 

This natural law of numbers and subsistence, Franklin 
says, is universal throughout the vegetable and animal king- 
doms.^ If the face of the earth were vacant of plants it 
might soon be overspread with one species, as for example 

^ Yia. Worhs, (Bigelow ed.), vol. IV., p. 196. Letter to John Al- 
leyne. 

^To John Sargent, vid. Worhs, (Bigelow ed.), vol. VIII., p. 257. 
^ Yid. Works, (Bigelow ed.), vol. II., p. 232. 



445] Population. 27 

with fennel. And were it empty of other inhabitants it might 
in a few ages be replenished from one nation only, as for 
instance with Englishmen/ " In fine, a nation well regulated 
is like a polypus ; take away a limb, its place is soon supplied. 
Cut it in two, and each deficient part shall speedily grow out 
of the part remaining. Thus if you have room and subsist- 
ence, of one nation you may make ten nations equally popu- 
lous and powerful." 

Nor do we need legislative enactments to adjust properly 
the number of inhabitants among the nations of mankind. 
*' The waters of the ocean may move in currents from one 
quarter of the globe to another, as they happen in some 
places to be accumulated and in others diminished; but no 
law beyond the law of gravity is necessary to prevent their 
abandoning any coast entirely. Thus the different degrees 
of happiness of different countries and situations find, or 
rather make their level by the flowing of people from one to 
another, and where that level is once found, the removals 
cease. Add to this that even a real deficiency of people in 
any country occasioned by a wasting war or pestilence is 
speedily supplied by earlier and more prolific marriages, en- 
couraged by the greater facility of obtaining the means of 
subsistence. So that a country half depopulated would soon 
be repeopled till the means of subsistence were equalled by 
the population. All increase beyond that point must perish 
or flow off into more favorable situations. Such overflow- 
ings there have been, of mankind in all ages, or we should 
not now have so many nations. But to apprehend absolute 
depopulation from that cause, and call for a law to prevent 
it, is calling for a law to stop the Thames lest its waters, by 
what leave it daily at Gravesend, should be quite exhausted."^ 

What has been the influence of Franklin upon Malthus? 
It has been said that Franklin's work suggested Malthus' 

^ Quoted by Malthus, Essay on Population, sixth edition, vol. I., 
p. 2. 

^ On a Proposed Act of Parliament for Preventing Emigration, vid. 
Works, (Bigelow ed.), vol. V., pp. 421-422. 



28 Benjamin Franklin as an Economist. [446 

Essay on Population ^ This seems to be claiming too much 
for the subject of our essay. In 1797 appeared Godwin's 
Enquirer^ Certain parts of this called out Malthus' 
Essay on Population in 1798, the first edition of which, it 
would seem, contained no reference to Franklin. After the 
first edition Malthus studied his subject more carefully, and 
found many works of which he had not before been familiar, 
and from which he quoted in his later editions. In the pre- 
face to the second edition of his work Malthus said the 
Essay on the Principles of Population which he published in 
1798 was suggested by a paper in Mr. Godwin's Inquirer. 
" The only authors from whose writings I had deduced the 
principle, which formed the main argument, of the essay were 
Hume, Wallace, Dr. Adam Smith and Dr. Price. ... In the 
course of this inquiry I found that much more had been 
done than I had been aware of when I first published 
the essay." Among the writers who had preceded him, 
Malthus mentions Franklin, from whose works he quotes in 
the later editions.^ Franklin, it seems, was the first to at- 
tempt to fix the rate of increase of population under favor- 
able circumstances. As early as 1760 he asserted that the 
American population was doubled by procreation alone 
every twenty or twenty-five years.'' Malthus in his later edi- 
tions adopted Franklin's estimate of the rate of increase of 
population in America. It was this estimate that aroused 
the ire of the sarcastic Godwin. *' Dr. Franklin," said he,° 
" is in this case particularly the object of our attention, be- 
cause he was the first man who started the idea of the people 
of America being multiplied by procreation so as to double 

^ Yid. Thorpe, Benjamin Franklin and the University of Penna., p. 
142. 

2 The full title of the work is, The Enquirer; Reflections on Edu- 
cation, Manners and Literature. 

^ Yid. for exaniple, vol. I., pp. 2 and 36, of sixth edition. 

*This appears time and again throughout his works. Yid. 
WorJcs, (Bigelow ed.J, vol. III., pp. 92, 417; VI., p. 49. 

' Population, an Enquiry concerning the Power of Increase in the 
Numbers of Mankind, pp. 119 et seq. 



447] Population, 29 

every twenty-five years. . . . Dr. Franklin has obtained a 
great name. But when he launches into assertions so vision- 
ary, I must say that a great name goes with me for nothing. 
Dr. Franklin, born at Boston, was eminently an American 
patriot. And the paper from which these extracts were 
taken^ was expressly written to exalt the importance and 
glory of his country. If this paper were without a date, I 
should have thought it had been written long before Frank- 
lin was twenty-five years of age."^ While it is true, then, 
that Franklin anticipated Malthus in pointing out the rela- 
tion between population and subsistence, and the influ- 
ence of a high standard of living as a preventive check to 
population, yet we cannot claim any direct influence of 
Franklin's writings on the first edition of Malthus' essay. 
Whatever influence he exerted originally came indirectly 
through the writings of Dr. Price and Adam Smith. Dr. 
Price was one of Franklin's regular correspondents, and 
Smith adopted Franklin's views with reference to the in- 
crease of population in the colonies. 

We have already said that in his later editions Malthus 
availed himself of the work of Franklin. It is worth men- 
tioning here that the first edition of Malthus did not contain 
his preventive check to population. " Throughout the whole 
of the present work," he says in his preface to the second edi- 
tion,^ " I have so far differed in principle from the former as 
to suppose the action of another check to population, which 
does not come under the head of either vice or misery." In- 
asmuch as Malthus in the interval between the appearance 
of the first and the second edition of his work made him- 
self familiar with Franklin's writings on population, one is 
led to believe that the influence of Franklin may be seen in 
Malthus' preventive check to the increase of population. 

^ The Peopling of Countries, vid. Works, (Bigelow ed.), vol. II., 
p. 223. 

^ Godwin places tlie date of this paper in 1731. In this he is in- 
correct. The paper appeared in 1751. Hence Franklin was not 
twenty-five, but forty-five years old. 

' Tid. p. 7. 



v.— VALUE. 

Franklin has been called the father of the Labor theory of 
value/ This is incorrect. It is true that as early as 1729, in 
his first paper of an economic character/ Franklin states 
this theory very fully. But the close resemblance between 
his language and that of Sir William Petty who preceded 
him by more than fifty years/ leads one to conclude that 
Franklin, who lived in London in 1724, must have known 
of Petty's work. Compare, for example, the following quo- 
tations taken from the works of Franklin and Petty. The 
same commodities are compared, in the same ratios, and the 
same Latin phrase used at the end: 



FRANKLIN, 1729. 

"By labor may the value of 
silver be measured as well as 
other things. As, suppose one 
man employed to raise corn 
while another is digging and re- 
fining silver. At the year's 
end, or at any other period of 
time, the complete produce of 
corn and that of silver are the 
natural price of each other; and 
if one be twenty bushels and the 
other twenty ounces, then an 
ounce of that silver is worth 
the labor of raising a bushel of 



PETTY, 1662. 

" Labor is the father and ac- 
tive principle of wealth, lands 
are the mother." And again, 
" If a man can bring to Lon- 
don an ounce of silver out of 
the earth in Peru in the same 
time that he can produce a 
bushel of com, then one is the 
natural price of the other. 

Now if by reason of new and 
more easy mines a man can get 
two ounces of silver as easily 
as formerly he did one, then 
corn wiU. be as cheap at 10s. 



^ Thorpe, Benjamin Franklin and the University of Pennsylvania, 
vid. p. 142. 

^ The Nature and Necessity of a Paper Currency, vid. Works, (Bige- 
low ed.), vol. I., p. 371. 

^ Pettj'^'s Essay on Taxes and Gontrihutions appeared in 1662. 



449] Yahie. 31 

that com. Now if by the dis- the bushel as it was before at 

covery of some nearer, more 5s., caeteris paribus." Essay on 

easy or plentiful mines, a man Taxes and Contributions, p. 32. 

may get forty ounces of silver 

as easily as formerly he did 

twenty, and the same labor is 

still required to raise twenty 

bushels of corn, then two 

ounces of silver will be worth 

no more than the same labor of 

raising one bushel of corn and 

that bushel of corn will be as 

cheap at two ounces as it was 

before at one, caeteris paribus." 

Nature and Necessity of a Paper 

Currency. Works (Bigelow ed.), 

vol. I., p. 371. 

It may be interesting in this connection to cite Smith's 
illustration of the same theory : " If among a nation of hun- 
ters it usually cost twice the labor to kill a beaver which it 
does to kill a deer, one beaver should naturally exchange 
for, or be worth, two deer."^ We observe that in all the 
quotations the word natural occurs. Each is striving to 
find a natural measure for value. This is not strange to one 
familiar with the philosophy of that day. We notice, too, 
that with Franklin and Petty time is the chief element in 
gauging value. Smith adds a third, " the different degrees of 
hardship endured." 

The interesting part about Franklin's theory of value is 
the change that he makes after his contact with the French 
economists. The year 1767 is an important date in Frank- 
lin's economic career. It will be remembered that this 
marks his first visit to Paris, and also the beginning of that 
correspondence between him and the economists which was 
kept up for many years. It is not too much to say that even 
if Franklin had never seen a line of the Tableau Economique 

^ Yid. Wealth of Nations, B. I., ch. 5. 



32 Benjamin Franklin as an Economist [450 

or the Physiocratie, his economic writings would still have 
been in many respects what we should call physiocratic. 
And yet we must admit that for certain doctrines he is di- 
rectly indebted to the French school. A few months after 
he had received the Physiocratie he sums up as follows his 
labor theory of value :^ 

" Food is always necessary to all, and much the greatest 
part of the labor of mankind is employed in raising pro- 
visions for the mouth. Is not this kind of labor, then, the 
fittest to be the standard by which to measure the values of 
all other labor, and consequently of all other things whose 
value depends on the labor of making or procuring them f " ^ 

In determining the value of manufactured articles, he 
comes out more plainly still on the physiocratic side. 
Though six pennyworth of flax, he says, be worth twenty 
shillings, when worked into lace, yet the very cause of its 
being worth twenty shillings is that, besides the flax, it has 
cost 19s. 6d. in subsistence to the manufacturer.^ 

1 Yic?. Letter to Lord Karnes, Feb. 21, 1769, ^orlzs, (Bigelow ed.), 
vol. IV., p. 229. Also quoted in Tytler's Life of Karnes, vol. 
IL, p. 115. 

^ The italics are my own. 

'^ Yid. Positions to be examined, Works, (Bigelow ed.), vol. IV., p. 
235, 4 April, 1769. 



VL— AGRICULTURE. 

After what has been said, we are prepared to learn that 
FrankHn estimated very highly the value of agriculture in 
his economic system. Such is the fact. He always took 
great interest in the welfare of the farmers. It was among 
them that he expected to find the greatest industry and fru- 
gality. Throughout his entire life he was on the lookout 
for new grasses or new plants which could be introduced in 
the colonies."" 

While abroad he tried to introduce silk culture in America. 
" I send you/' he says in a letter to Cadwallader Evans/ " a 
late French treatise on the management of silk-worms. . . . 
There is no doubt with me that it [silk culture] might suc- 
ceed in our country. It is the happiest of all inventions for 
clothing. Wool uses a good deal of land to produce it, 
which if employed in raising corn would afford much more 
subsistence for man than the mutton amounts to. Flax and 
hemp require good land, impoverish it, and at the same time 
permit it to produce no food at all. But mulberry trees may 
be planted in hedgerows, on walks or avenues, or for shade 
near a house where nothing else is wanted to grow. The 
food for the worms is in the air, and the ground under the 
trees may still produce grass or some other vegetable good 
for man or beast. Then the wear of silk garments continues 
so much longer, from the strength of the materials, as to give 
it greatly the preference." 

In many of his private letters Franklin describes agricul- 
ture as "the most useful, the most independent, and there- 
fore the noblest of employments." He calls agriculture and 
fisheries the great source of increasing wealth in the United 



^ Yid. Works, (Bigelow ed.), vol. II., p. 75, letter to Tared Elliot; 
vol. VI., p. 21, letter to Philip Mazzei. 
"" Yid. WorJcs, (Bigelow ed.), vol. IV., p. 268. 



34 Benjamin FranJcUn as an Economist [452 

States. " He that puts a seed into the earth is recompensed, 
perhaps, by receiving forty out of it. And he who draws a 
fish out of our water draws up a piece of silver."' If a coun- 
try will be attentive to these, the power of rivals, with all 
their restraining and prohibiting acts, cannot hurt it. " We 
are sons of the earth and the seas, and like Antaeus in the 
fable, if in wrestling with Hercules we now and then receive 
a fall, the touch of our parents will communicate to us fresh 
strength and vigor to renew the contest." It is the " indus- 
trious, frugal farmers " who are the mainstay of the nation, 
and who cannot be ruined by the luxury of the seaports. 

It is to be remembered that about 1768 Parliament was 
very much agitated over the Boston Resolutions not to 
import any goods manufactured in England. In a letter of 
this date,'' Franklin gauges the value of agriculture to any 
society. He says : " After all, this country (i e. England) is 
fond of manufactures beyond their real value, for the true 
source of riches is husbandry. Only agriculture is truly 
productive of new wealth." In this respect, too, Franklin is 
in entire accord with the Physiocrats. 

^ Tlie, Internal State of America, p. 16, supra. 

=^To Cadwallader Evans, 20 Feb., 1768, vid. Works, (Bigelow 
ed.), vol. IV., p. 120. 



VIL— MANUFACTURES. 

Franklin maintained that the shape which the economic 
life of a society would take depended on the number of the 
people in that society. "The natural livelihood of the thin 
inhabitants of a forest country is hunting; that of a greater 
number, pasturage; that of a middling population, agricul- 
ture, and that of the greatest, manufactures."^ He often had 
occasion to convince the English people that so long as land 
was abundant in the colonies the EngUsh need not fear 
American competition in manufactures. According to 
Franklin, a system of manufactures in a country implies: 

(i) A large population. " They who understand the econ- 
omy and principles of manufactures know that it is impos- 
sible to establish them in places not populous." Everybody 
knows, he says, that all the penal and prohibitory laws that 
were ever devised will not be sufficient to prevent manu- 
factures in a country whose inhabitants surpass the number 
that can subsist by the husbandry of it. It is because there 
are many poor without land in a country that undertakers 
can carry on a manufacture and afford it cheap enough to 
prevent the importation of the same kind from abroad and 
to bear the expense of its own exportation. (2) A great 
system of commerce. This is necessary to supply the raw 
materials. (3) Machines for expediting and facilitating 
labor. (4) Channels of correspondence for vending the 
wares, together with the confidence and credit necessary to 
support this correspondence. (5) Mutual aid of different 
artisans, that is, in the language of the modern economist, a 
high degree of division of labor. " Manufactures, where 
they are in perfection, are carried on by a multitude of hands, 
each of which is expert only in his own part, no one of them 

^ Yid. Works, (Bigelow ed.), vol. III., p. 86. Interests of Great 
Britain considered with reference to her Colonies. 



36 Benjamin Franklin as an Economist, [454 

a master of the whole." Hence, in order to establish a new 
industry in a new country it is necessary to import " a com- 
plete set " of workmen. 

But wherein lies the advantage of manufactures to a 
society if " only agriculture is truly productive of new 
wealth " ? Even though " riches are not increased by manu- 
facturing," yet Franklin claimed that manufactures are 
often advantageous for the following reasons: (i) Provisions 
in the shape of manufactures are more easily carried for sale 
to foreign markets. " And where the provisions cannot be 
easily carried to market, it is well to transform them." It 
was because the farmers of western Pennsylvania did not 
have the necessary means of transportation to market their 
wheat that they converted it into whiskey. This explains 
why they so vigorously opposed Hamilton's internal reve- 
nue tax in what is commonly called the Whiskey Insurrec- 
tion. (2) In families where the children and servants have 
some spare time, it is well to employ it in making something, 
for example by spinning or knitting. For " the family must 
eat whether they work or are idle." (3) Another advantage 
of manufactures is in this, that by their means our traders 
may more easily cheat strangers. Few, where it is not made, 
are judges of the value {i. e., cost of production) of lace. 
The importer may demand 40s. and perhaps get 30s. for that 
which cost him but 20s. 

There are then, says Franklin, three ways by means of 
which a nation can acquire wealth. The first way is by war, 
as the Romans did, in plundering their conquered neighbors. 
This is robbery. The second is by commerce, which is gen- 
erally cheating. The third, by agriculture, the only honest 
way, " wherein man receives a real increase of the seed 
thrown into the ground, in a kind of continuous miracle, 
wrought by the hand of God in his favor, as a reward for his 
innocent life and his virtuous industry."^ 

^ yid. (1) Letter to Cadwallader Evans, ^orlzs, (Bigelow ed.), 
vol. IV., p. 120; (2) Positions to 6c examined concerning National 
Wealth, vol. IV., p. 235. 



455] Manufactures. 37 

When we read such physiocratic statements as the one 
laid down by FrankHn that manufactures are only another 
shape into which so much of provisions and subsistence 
are turned, we ought constantly to remember the condition 
of laboring men then engaged in manufactures. While 
Franklin was in England he made a tour of investigation 
through some of the manufacturing towns. He gave the 
result of his observations in a letter to a friend/ a part of 
which we quote : " Had I never been in the American colo- 
nies, but were to form my judgment of civil society by what 
I have lately seen, I should never advise a nation of savages 
to admit of civilization. For I assure you that in the pos- 
session and enjoyment of the various comforts of life, com- 
pared to these people, every Indian is a gentleman." Is it a 
wonder that Franklin asserted that only agriculture is truly 
productive? 

^ To Joshua Babcock, vid. Works, (Bigelow ed.), vol. IV., p. 441. 



VIIL— FREE TRADE/ 

Franklin was: always a firm believer in the utmost freedom 
of trade. This he based on natural right. " There cannot 
be a stronger natural right," he said/ " than that of a man's 
making the best profit he can of the natural produce of his 
lands." In a letter to a friend/ he " admires the spirit with 
which the Irish are at length determined to claim some share 
of that freedom of commerce which is the right of all man- 
kind, but which they have been so long deprived of, by the 
abominable selfishness of their fellow-subjects. To enjoy 
all the advantages of the climate, soil, and situation in which 
God and nature have placed us, is so clear a right as that of 
breathing, and can never be justly taken from men but as a 
punishment for some atrocious crime." 

The self-interest of the traders will be sufficient to guide 
the direction of trade and to fix prices. It seems contrary to 
the nature of commerce, he says,"* for government to interfere 
in the prices of commodities. Trade will best make its own 
rates. This is as true of foreign as of domestic trade. The 
state whose ports are open to the world is the one whose 
goods will bring the highest price, and whose money will 
buy the cheapest goods.^ 

^ Most collections of Franklin's works contain the Essay on Prin^- 
ciples of Trade, a paper full of sound economic doctriue. The 
essay was written originally by George Whatley, and revised by 
Franklin. Franklin later disclaims all right of authorship to the 
article. In a letter to Whatley he asks for a copy of Whatley's 
'* excellent little work, the Principles of Trade.'' For this reason 
we have given no notice to this paper. 

^ Causes of the American. Discontent, 1768, vid. Works, (Bigelow 
ed.), vol. IV., p. 107. 

' To Sir Edwin Newenham, vid. WorTcs, (Bigelow ed.), vol. VI., p. 
405. 

* Remarks on a Plan for the Future Management of Indian Affairs, 
vid. Works, (Bigelow ed.), vol. III., p. 479. 

^ Letter to Livingstone, vid. Works, (Bigelow ed.), vol. VIII., 
p. 304, 



457] Free Trade. 39 

Nor did he believe in import duties for the sake of encour- 
aging new industries. " When the governments (that is, of 
the separate states before 1787) have been soHcited to sup- 
port such schemes by encouragements in money or by im- 
posing duties on importations of such goods, it has been 
generally refused on this principle, that if the country is ripe 
for the manufacture, it may be carried on by private per- 
sons to advantage, and if not, it is a folly to think of forcing 
nature. The manufacture of silk, they say, is natural in 
France, as that of cloth in England, because each country 
produces in plenty the first material. But if England will 
have a manufacture of silk as well as that of cloth, and 
France, of cloth as well as that of silk, these unnatural opera- 
tions must be supported by mutual prohibitions or high 
duties on the importation of each other's goods, by which 
means the workmen are enabled to tax the home consumer 
by greater prices, while the higher wages they receive makes 
them neither happier nor richer.'"^ Franklin looked at the 
problem from the consumer's point of view. "We hear 
much," he says, " of the injury the concessions to Ireland 
will do to the manufacturers of England, while the people 
of England seem to be forgotten as quite out of the ques- 
tion. If the Irish can manufacture cottons, and silks, and 
linens, and cutlery, and toys, and books so as to sell them 
cheaper in England than the manufacturers of England sell 
them, is not this good for the people of England?'"' 

The effect of trade restrictions is concisely put in a Note 
respecting Trade and Manufactures!" " Suppose a country, 
X, with three manufactures, as cloth, silk, iron, supplying 
three other countries. A, B and C, but is desirous of increas- 
ing the vent, and raising the price of cloth in favor of her 

^Information to those who would remove to America, vid. Works, 
(Bigelow ed.), vol. VIII., p. 181. It will be remembered that this 
was written in France. 

^Letter to Benjamin Vaughan, vid. Works, (Bigelow ed.), vol. 
IX., p. 96. 

» Yid. Works, (Bigelow ed.), vol. IV., p. 21. 



40 Benjamin Franklin as an Economist. [458 

own clothiers. In order to do this, she forbids the importa- 
tion of foreign cloth from A. A in return forbids silks 
from X. Then the silk workers complain of a decay of 
trade. And X, to content them, forbids silks from B. B 
in return forbids iron ware from X. Then the iron workers 
complain of decay, and X forbids the importation of iron 
from C. C in return forbids cloth from X. What is got by 
ail these prohibitions? Answer. — All four find their com- 
mon stock of the enjoyment and conveniences of life dim- 
inished.'' Franklin, the day after he returned from England, 
May 6th, 1775, was elected a delegate to the second Conti- 
nental Congress. In this Congress he introduced resolu- 
tions of free trade with continental Europe. But Con- 
gress refused to act on them at that time. We cannot close 
this part of our essay without referring to one more public 
act of Franklin's. It had long been a favorite idea with him 
that " free ships make free goods." He believed in allowing 
free course to neutral ships of commerce in time of war, and 
had the honor as his last public act in Europe of signing a 
treaty with Frederick the Great, a clause of which embodied 
this favorite idea."" 

^Yid. (1) Works, (Bigelow ed.), vol. IX., p. 89; (2) Bancroft, 
History of the United States, edition of 1883, vol. VI., p. 152. 



IX.— TAXATION. 

In the examination before the House of Commons in 
1766, FrankHn divided taxes into two kinds.^ An external 
tax he defined as a " duty laid on commodities imported." 
This duty is added to the first cost and enters into the price 
of the article. It is a voluntary tax, inasmuch as any one 
may avoid the tax by not buying the article. An internal 
tax he defined as a tax laid within the colony. It is a volun- 
tary tax if levied by the representatives of the people, but 
involuntary if imposed by Parliament, in which the colonies 
are not represented. On general principles Franklin be- 
lieved that a State should raise its revenue by direct taxes 
rather than by import duties. Import duties are objection- 
able, he said, because: (i) They are only another mode of 
taxing your own people; (2) The law is difificult to execute, 
leads to smuggling; (3) It prevents wholesome exchange of 
products between two countries, and this destroys honest 
trade." 

It has just been said that Franklin held that an import 
duty enters into price. More than this, he maintained that 
a tax on exported articles is paid by the consumer. "All 
goods brought out of France to England or any other coun- 
try are charged with a small duty in France which the con- 
sumers pay. 

Although on purely economic grounds Franklin favored 
direct taxes, yet we find that as a means of raising revenue 
for the United States just after the adoption of the Consti- 
tution he advocated import duties. This called forth a 

^ Vid. Works, (Bigelow ed.), vol. III., p. 422. 

'Yid. (1) Letter to Jared Elliot, Works, (Bigelow ed.), vol. II., 
p. 78; (2) Letter to Wm. Franklin, ibid., vol. IV., p. 130. 

' Letter to Wm. Franklin, iUd., vol. IV., p. 131; Letter to Shirley, 
iUd., vol. III., p. 381. 



42 Benjamin Franklin as an Economist. [460 

shower of letters from his French correspondents, who 
called him to task for his economic apostasy. In his replies 
to these letters we find the same reasons given for his ac- 
tions: (i) That the war debt made import duties necessary; 

(2) That an indirect tax would not bear so grievously on the 
people, who were still sensitive on the subject of taxation; 

(3) That to collect a direct tax in a sparsely settled country 
was too expensive. " I am of the same opinion with you 
respecting the freedom of commerce, especially in countries 
where direct taxes are practicable. This will be our case in 
time when our wide-extended country fills up with inhabi- 
tants. But at present they are so widely settled, often five 
or six miles distant from one another in the back country, 
that a collection of a direct tax is almost impossible, the 
trouble of the collectors going from house to house amount- 
ing to more than the value of the tax. . . . Our debt occa- 
sioned by the war being heavy, we are under the necessity 
of using imports, and every method we can think of, to 
assist in raising a revenue to discharge it, but in sentiment 
we are well disposed to abolish duties on importation, as 
soon as we possibly can afford to do so."^ 

In a letter to Mr. Smalf he gives as another reason, that the 
legislators, who are landowners as well, "are not yet per- 
suaded that all taxes are finally paid by the land." 

The discourse of Father Abraham in the Wa}^ to Wealth^ 
although not contributing anything to a theory of taxation, 
contains a number of aphorisms on voluntary taxation 
which may not be out of place here. The taxes of the gov- 
ernment are indeed heavy, says Father Abraham, but "we 
are taxed twice as much by our idleness, three times as much 
by our pride, and four times as much by our folly ; and from 
these taxes the commissioners cannot ease or deliver us by 

^ Y%6,. Letter to the Abb§ Morellet, Worlzs, (Bigelow ed.), vol. 
IX., p. 383; also Turgot, dJuvres, (Daire ed.), I., 409. 
'Works, (Bigelow ed.), vol. IX., p. 414. 
' Vid. p. 13. 



461] Taxation, 43 

allowing an abatement." "Dost thou love life?" he says; 
" then do not squander time, for that is the stuff life is made 
of." And " if time be of all things the most precious, wast- 
ing time must be the greatest prodigality," because "lost 
time is never found again, and what we call time enough 
always proves little enough." . . . "Away then with your 
expensive follies," says Father Abraham, " and you will not 
then have so much cause to complain of hard times, heavy 
taxes, and expensive families. Goods in the shape of fineries 
and knicks-knacks are more likely to prove evils in the end."^ 

^ A number of similar aphorisms on economic conduct are con- 
tained in Necessary Hints to those that would he Rich, 1736, (Works, 
Bigelow ed., vol. I., p. 440), and in the Advice to a Young Tradesman, 
1748, (Works, Bigelow ed., vol. II., p. 118). 



X.— FRANKLIN AND THE PHYSIOCRATS. 

As has been already stated, Franklin made his first visit to 
Paris in 1767. It will be remembered that this was the year 
in which the colonial taxes on teas, glass, paints were voted 
by Parliament. Already France was beginning to show 
signs of encouraging the colonies to withdraw from the 
mother-country. Durand, the French minister in London, 
courted the friendship of Franklin, and no doubt encouraged 
him to visit Paris. In order that Franklin might be well 
received in France, Durand gave him " letters of recommen- 
dation to the Lord knows who." Franklin suspected that 
iJurand was trying " to blow up the coals between Great 
Britain and her colonies," but hoped they would " give them 
no opportunity."' Franklin felt that in making this visit to 
France the greatest caution and secrecy would have to be 
observed. In a letter to his son regarding this visit, he 
requests him to " communicate nothing of this letter but 
privately to our friend Galloway." While this visit was 
largely of a political character, it is of the greatest interest to 
the economic student, because it was at this time that Frank- 
lin came first into direct contact with the Physiocrats. At 
once the closest intimacy sprang up. This no doubt was 
due to the many points of similarity in his views and their 
system of thought. Franklin was always very favorably dis- 
posed towards the industrious and frugal farmer. In the 
opening lines of the essay on the Price of Corn he says : " I 
am one of that class of people that feeds you all and at 
present is abused by you all. In short, I am a farmer." 
Franklin came from a country in which it could not be de- 
nied that agriculture was the most important source of 
wealth. He could not do otherwise, then, than to assent to 

^Tid. Worlzs, (Bigelow ed.), Letter to William Franklin, vol. 
IV., p. 32. 



463] Franklin and the Physiocrats. 45 

the physiocratic dictum that everywhere agriculture alone is 
productive. Then again, from the very beginning he advo- 
cated the utmost freedom of trade, whether domestic or 
foreign. We have seen that he opposed the Connecticut 
Tariff as well as the attempt to regulate the trade with the 
Indians. In these broad-minded views also he found himself 
in entire accord with the Physiocrats, for we are beginning to 
see that there is more to the physiocratic system than the 
" sterility of manufactures." In advocating the liberal, un- 
selfish policy which should take in " the interest of humanity, 
or the common good of mankind "^ he was in harmony with 
physiocratic philosophy as well as independent of French 
influence. Besides, the words nature 3.nd natural appealed as 
strongly to Franklin's mind as they did to those of the Phy- 
siocrats. With him agricultural labor fixes the 7iatural price 
of commodities. His rate of interest is a natural rate, deter- 
mined by the rent of so much land as the money lent will 
buy. Freedom of trade is based on a natural right. Manu- 
factures will naturally spring up in a country as the country 
becomes ripe for them. His law of the increase of popula- 
tion is based on the more fundamental law in nature that 
numbers are constantly crowding subsistence. The law of 
the adjustment of population among the different countries 
of the world is a natural law based on the comparative well- 
being of mankind.^ Under these circumstances we can 
easily account for the friendly letters that passed between 
Franklin and the Economists. 

The father of the school of Economists, as is well known, 
was Quesnay. Among the leading disciples were Mirabeau, 
the " friend of men," from Ami des HommeSy the title of one 
of his books; Duponf de Nemours, Du Bourg, and Turgot, 

^ yid. his letter to Hume, 1760, Worlzs, (Bigelow ed.), vol. III., 
p. 127. 

^ yid. for example the quotation on p. 27. Every shipload of 
steerage passengers landed in Castle Garden shows with what 
force the principle still operates. 

^ The Dupont family afterwards emigrated to the United States 
and established the celebrated Dupont Powder Works. Yid 
Hale's Franklin in France, vol. I., p. 7. 



46 Benjamin Franklin as an Economist, [464 

with all of whom Franklin became intimately acquainted. 
The correspondence between Franklin and these men began 
immediately after his return to London. A letter from Du- 
pont to Franklin early in 1768 runs as follows: "I had 
already known you as a savant, geometer, naturalist, as the 
man whom nature permitted to unveil her secrets. But now 
my friend, Dr. Barber Du Bourg, has been kind enough to 
send me many of your writings relative to the affairs of your 
country. I have taken the liberty to translate some of them.'' 
At every page I find the philosophical citizen, bringing his 
genius to bear for the sake of the happiness of his brother 
and the dearest interest of humanity. These writings have 
made me regret more than ever that I did not meet you 
while you were in Paris. If, to our good fortune, you shall 
come here again, promise me, I beg you, to repair my loss 
as completely as possible."^ With the letter came a copy of 
Dupont's Physiocratie. The letter of Franklin in reply to 
the former is interesting as showing how close was the 
friendship between him and the Economists. We quote it 
in full:' 

" I received your obliging letter of the loth May, with the 
most acceptable Present of your Physiocratie, which I have 
read with great Pleasure, and received from it a great deal of 
Instruction. There is such a Freedom from local and na- 
tional Prejudices and Partialities, so much Benevolence to 
Mankind in general, so much Goodness mixed with Wisdom, 
in the Principles of your new Philosophy, that I am perfectly 
charmed with them, and wish I could have stayed in France 

^Very probably for publication in the EpMmerides du Gitoyen, 
of which Dupont was the editor. We know certainly that the 
article on the Price of Corn and Management of the Poor was so 
published. Yid. Works, (Sparks ed.), vol. II., p. 235, also Pal- 
grave's Dictionary of Political Economy, article " Eph§m§rides." 

^ Quoted by Hale, Benjamin Franklin in France, vol. I., p. 13. 

» Yid. Works, (Bigelow ed.), vol. IV., p. 194. 



465] Franklin and the Physiocrats, 47 

for some time, to have studied in your schoof that I might 
by conversing with its founders have made myself quite a 
Master of that Philosophy. ... I am sorry to find that that 
Wisdom which sees the Welfare of the Parts in the Pros- 
perity of the Whole seems yet not to be known in this Coun- 
try. . . . We are so far from conceiving that what is best for 
Mankind or even for Europe in general, may be best for 
us, that we are ever studying to establish and extend a sep- 
arate Interest of Brittain, to the Prejudice of even Ireland 
and our own Colonies. ... It is from your Philosophy only 
that the maxims of a contrary and more happy conduct are 
to be drawn, which I therefore sincerely wish may grow and 
increase till it becomes the governing Philosophy of the 
human Species, as it must be that of superior Beings in bet- 
ter Worlds. I take the Liberty of sending you a little 
Fragment that has some Tincture of it, which on that ac- 
count I hope may be acceptable. 

Be so good as to present my sincere Respects to that 
venerable Apostle Dr. Quesnay, and to the illustrious Ami 
des Hommes (of whose Civilities to me at Paris I retain a 
grateful Remembrance) and believe me to be, with real and 
very great Esteem, Sir, 

Your obliged and most obedient humble Servant, 

B. Franklin." 

Franklin revisited Paris in 1769. But if his first mission 
was political, his second was still more so. We find very 
few letters after this date which are not entirely political in 
their character. Franklin after 1770 was too busy a man 
to take much interest in the philosophical disquisitions of the 

^ This school is described as follows by Grimm: " They begin 
with a good dinner, then they labor; they chop and dig and drain; 
they do not leave an inch of ground in France. And when they 
have either labored all day in a charming saloon, cool in sum- 
mer, and well warmed in winter, they part in the evening well 
contented, and with the happy satisfaction that they have made 
the Kingdom more flourishing." Yid. Hale, loc. cit., p. 8. Rather 
a pleasant school to study in! 



48 Benjamin Franklin as an Economist. [466 

Economists. It was on this second visit that he arranged 
with Du Bourg for a French translation of his works. Later 
many letters passed between Franklin and Du Bourg, chiefly 
with reference to this translation. In one of them Du Bourg 
sends the '' compliments of Dupont and the Marquis of 
Mirabeau." Dupont himself, sends Franklin a copy of one 
of his later works, which calls out another very interesting 
letter from Franklin. " Accept my sincere Acknowledge- 
ments and Thanks," he says,^ " for the valuable Present you 
made me of your excellent Work on the Commerce of the 
India Company, which I have perused with much Pleasure 
and Instruction. It bears throughout the Stamp of your 
Masterly Hand, in Method, Perspicuity, and Force of Argu- 
ment. The honorable Mention you have made in it of your 
Friend is extremely obliging. I was already too much in 
Debt for Favors of that Kind. I purpose returning to 
America in the ensuing Summer if our Disputes should be 
adjusted, as I hope they will be in the next session of Parlia- 
ment. Would to God I could take with me Messrs. Du- 
pont, Du Bourg and some other French Friends with their 
good Ladies. I might then by mixing them with my Friends 
in Philadelphia form a little happy Society that would pre- 
vent my ever wishing again to visit Europe." 

This gives us some idea of the intimacy that existed be- 
tween Franklin and the Economists. Franklin returned to 
Paris in 1776. But this time it was Franklin the Diplo- 
matist. One can almost say that with the year 1770 closed 
Franklin's philosophical career. In a letter to the President 
of the Royal Society he longs " earnestly for a return of 
those peaceful times when I could sit down in sweet society 
with my English philosophical friends, communicating to 
each other new discoveries and proposing improvements of 
old ones; all tending to extend the power of man over mat- 
ter, avert or diminish the evils he is subject to, or augment 

' 2 October, 1770, vid. Works, (Bigelow ed.), vol. IV., p. 368. 



467] Franklin and the Physiocrats, 49 

the number of his enjoyments."^ Philosophy with him had 
always been simply a means of benefiting his fellow-man. 
When he could do this better as a diplomatist, he very will- 
ingly set aside philosophy for diplomacy.* 

^ Yid. Works, (Bigelow ed.), vol. VIII., p. 169. 

^For otlier letters between Franklin and the French philoso- 
phers, vid. index to Worlcs, (Bigelow ed.), vol. X., under the 
names Le Roy, Condorcet, Rochefoucauld, Veillard, Du Bourg, 
Morellet, Chaumont. 



XL— FRANKLIN AND THE ENGLISH 
PHILOSOPHERS. 

During Franklin's first sojourn in England he was made 
a member of the Royal Society. Here he met the first phil- 
osophers of the country. In the summer of 1759 he made 
a journey to Scotland, where he became acquainted with 
Lord Kames, Dr. Robertson and the philosopher Hume. 
How much he enjoyed this visit we may know from a letter 
he afterwards wrote to Lord Kames. " On the whole, I 
must say, I think the time we spent there was six weeks of 
the densest happiness I have met with in any part of my life ; 
and the agreeable and instructive society we found there in 
such plenty has left so pleasing an impression on my mem- 
ory that did not strong connections draw me elsewhere, I 
believe Scotland would be the country I should choose to 
spend the remainder of my days in."^ Franklin was not the 
man to let so valuable an acquaintance as that of Lord 
Kames to go by unimproved. We find many letters pass- 
ing between them, in which each asks the other's criticism on 
some project. Now we find them discussing the "prefer- 
able use of oxen in agriculture," now agricultural labor as a 
measure of value. 

Kames in one of his letters asked Franklin to send him 
all his publications. Franklin tried to get them, but finally 
had to write that he could not find them. " Very mortifying 
this, to an author, that his works should so soon be lost." 
Early in 1769 Franklin wrote to Kames that he had " thrown 
some of his present sentiments into the concise form of 
aphorisms, to be examined between us, if you please, and 
rejected or corrected and confirmed, as we shall find most 
proper." In reply to this letter Kames wrote that he had " a 

^ Yid. Worlis, (Bigelow ed.), vol. III., p. 42. Also quoted in 
Tytler's Life of Kames, vol. I., p. 370. 



469] Franklin and the English Philosophers. 51 

great fund of political knowledge reduced into writing, far 
from being ripe, but fit for your perusal. If you will come 
to my aid, I know not but that we shall make a very good 
thing of it."^ A few months later appeared Franklin's Posi- 
tions to be Examhted Concerning National Wealthy prob- 
ably strengthened and improved by the criticisms of the 
Scotch philosopher. 

With Hume, too, Franklin corresponded for many years. 
After having received from Hume a copy of the Essay on 
Commerce^ he wrote that it could not "but have a good 
effect in promoting a certain interest too little thought of by 
selfish man. I mean the interest of humanity, or common 
good of mankind.'"' 

When Hume learned that Franklin was about to leave 
England, he wrote that he was very sorry that Franklin 
intended soon to leave the old hemisphere. "America has 
sent us many good things, gold, silver, sugar, tobacco, in- 
digo. But you are the first philosopher and indeed the first 
great man of letters for whom we are beholden to her." In 
reply, Franklin wrote that the value of everything depends 
on the "proportion of the quantity to the demand." Eng- 
land has plenty of wisdom. Hence, Franklin says he should 
market his share of this commodity " where from its scarcity 
it may probably come to a better market."^ 

In Watson's Annals of Philadelphia'' we read that '' Frank- 
lin once told Dr. Logan that the celebrated Adam Smith 
when writing his Wealth of Nations was in the habit of 
bringing chapter after chapter as he composed it, to himself, 
Dr. Price, and others of the literati ; then patiently hear their 
observations, and profit by their discussions and criticisms, 
even sometimes to write whole chapters anew and even to 
reverse some of his propositions." John Rae, in his recent 

^ Tia. l^orks, (Bigelow ed.), vol. IV., p. 224. 

""Tid. Worlds, (Bigelow ed.), vol. III., p. 127. 

3 yid. WorTcs, (Bigelow ed.), vol. III., p. 193. 

* Vol. I., p. 533. ! ' 



52 Benjamin Franldin as an Economist. [470 

Life of Adam Smith (p. 150), quotes Dr. Carlyle as saying 
that Franklin met Smith at a dinner given by Dr. Robertson, 
during FrankHn's first visit to Scotland.^ Later, Smith, in a 
letter to Strahan, who was one of Franklin's most intimate 
friends, asked to be remembered " to the Franklins " (mean- 
ing Benjamin Franklin and his son). Another letter written 
by Hume to Smith is interesting in this connection. It will 
be remembered that Franklin for a time was held in rather 
bad repute in London on account of the Hutchinson letters. 
Regarding this matter, Hume writes to Smith as follow^s: 
" Pray what strange accounts are these we hear of Franklin's 
conduct? I am very slow in believing that he has been 
guilty in the extreme degree that is pretended, though I 
always knew him to be a very factious man. And faction 
next to fanaticism is of all passions the most destructive of 
morality. How is it supposed that he got possession of 
these letters? I hear that Wedderburn's treatment of him 
before the Council was most cruel, without being in the 
least blameable. What a pity I'"* 

There can be no doubt that Smith and Franklin were 
acquainted with each other. But to what extent Franklin 
contributed to the Wealth of Nations it is impossible to 
determine. It is true that Franklin and Smith spent at least 
two years in London at the same time. Smith came to 
London in the spring of 1773 with his book, as he thought 
at the time, almost ready to be printed. During the next 
three years he made many changes, especially in the chapter 
on the colonies, while the passage on American wages was 
inserted for the first time.^ One would naturally expect that 

'^yid. p. 50. 

"^ Vid. Burton's Life and Correspondence of D. Hume, vol. II., 
p. 471. 

^ Yid. John Rae, loc. cit., p. 256. It is interesting to note in this 
connection that Franklin later, in his Reflections on the Augmen- 
tation of Wages, quotes from this chapter that part which he is 
supposed by some to have written, the portion referring to 
wages in the colonies. It is the only direct quotation from the 
Wealth of Nations found in all of Franklin's economic works. 



471] Franklin and the English Philosophers. 53 

Smith, under such circumstances, would avail himself of 
Franklin's accurate knowledge of colonial affairs. Frank- 
lin's estimate that in the colonies the population was doubled 
every twenty or twenty-five years was accepted by Smith.^ 
Then, too, Franklin often had occasion to defend the co- 
lonial paper currency with his pen. No doubt he understood 
the nature of paper money as well as any Englishman living 
at the time. If Smith consulted him at all, it is more than 
likely that he did so with reference to the chapter on money. 
But here at least Franklin was not very successful in causing 
Smith "to reverse his propositions," as Dr. Logan would 
have us believe. The American paper currency, which was 
the pride of Franklin, was characterized by Smith as "a 
scheme of fraudulent debtors to cheat their creditors.""" And 
concerning the law forbidding the further issue of paper 
money in the colonies. Smith said that "no law could be 
more equitable than the act of Parliament so unjustly com- 
plained of in the colonies."^ It will be remembered that it 
was in opposition to this law that Franklin wrote his Re- 
marks and Facts Relative to the American Paper Money ^ 
It may be true that Smith occasionally consulted Franklin 
in revising his work, but we are forced to believe that the 
view expressed above is very much exaggerated. 

^ Yid. Wealth of Nations, Book I., ch. 8, (Bohn ed.), vol. I., p. 71. 
=* Vid. Wealth of Nations, Book II., ch. 2, (Bohn ed.), vol. I., 
p. 331. 
« IMd., p. 332. 
* Vid. p. 14. 



XIL— CONCLUSION. 

The subject of this essay has been described^ as a man of 
expedients rather than principles, sagacious in dealing with 
immediately practical questions, but satisfied with the crud- 
est speculation as to the operation of causes in any degree 
remote. It is further urged against him that not only did 
he not advance the growth of economic science, but that he 
seemed not even to have mastered it as it was already de- 
veloped. This language is certainly too severe. Either we 
must be willing to give a place in economic science to Frank- 
lin, or we must deny the same privilege to all writers on 
economic matters who preceded Adam Smith. It is true 
that Franklin was largely a man of expedients, if by that we 
mean that he was interested in that truth which could be 
immediately applied for the good of mankind. But we 
maintain also that Franklin was a man who understood 
thoroughly the working of certain economic principles. No 
one else saw more clearly than he did the injurious eflPect of 
the many trade restrictions prevalent in the civilized world 
in his day. In that "great reaction of the eighteenth 
century against artificial conditions of life," in that move- 
ment of liberty, industrial as well as political, we claim that 
Franklin was one of the first as well as one of the leading 
factors. And it must be admitted that on the subject of 
population he did not always indulge in the " crudest specu- 
lations as to the operation of causes in any degree remote." 
No one knew better than he did the causes both of the 
increase of population and of the adjustment of people 
among the nations of the earth. 

Nor can it be said that Benjamin Franklin did not master 
the science as it was already developed. We must remem- 

^O. F. Dunbar, Econ.omic Science in North America. North 
American Review, January, 1876. 



473] Conclusion. 55 

ber here the fragmentary condition of English economics 
before 1776. The claim has already been made that Frank- 
lin was familiar with Petty's Essay on Taxes and Contribu- 
tions. Of course there is no means of finding out how 
much he had read of the other early English economists. 
But the fact that his opinion on all economic matters (or 
rather politico-economic, for that is the only kind of eco- 
nomics that the seventeenth and eighteenth centuries knew) 
was sought by all the philosophers of his day is enough to 
prove that Franklin understood eighteenth century eco- 
nomics fairly well. The only system of economics of which 
we can speak during this period is the physiocratic system. 
What English-speaking man, we ask, understood this system 
better than Franklin? 

The subject of our essay, then, was more than a man of 
expedients, and he had some knowledge of economic science 
as it had been developed up to his time. And unless this 
paper has been written in vain, we shall admit that some of 
Franklin's essays deserve a place in the history of economic 
literature. In his works we find the following theses: 

(i) Money as coin may have a value higher than its bul- 
lion value. 

(2) Natural interest is determined by the rent of so much 
land as the money loaned will buy. 

(3) High wages are not inconsistent with a large foreign 
trade. 

(4) Population will increase as the means of gaining a liv- 
ing increase. 

(5) A high standard of living serves to prolong single life, 
and thus acts as a check upon the increase of population. 

(6) People are adjusted among the different countries 
according to the comparative well-being of mankind. 

(7) The value of an article is determined by the amount of 
labor necessary to produce the food consumed in making the 
article. 

(8) While manufactures are advantageous, only agricul- 
ture is truly productive. 



56 Benjamin Franklin as an Economist, [474 

(9) Manufactures will naturally spring up in a country as 
the country becomes ripe for them. 

(10) Free trade with the world will give the greatest re- 
turn at the least expense. 

(11) Wherever practicable, State revenue should be raised 
by direct taxes. 

Franklin, then, deserves a place in the history of early 
economic literature, and especially in the history of Ameri- 
can economics. He is the first American who deserves to 
be dignified by the title Economist. 



BIBLIOGRAPHY. 

Bancroft, G. History of the United States, vol. II., 1883. 
Bigelow, J. (a) Autobiography of Benjamin Franklin, 1868.— 

(b) Works of Benjamin Franklin, 10 vols., 1887. 
Bohm-Bawerk. Capital and Interest, 1890. 
Breck, S. Historical Sketch of Continental Paper Money, 1863. 
Burton, J. II. Life and Correspondence of David Hume, 2 vols., 

1846. 
Cunningham, W. Growth of English Industry and Commerce 

in Modern Times, 1892. 
Ford, P. L. Bibliography of Benjamin Franklin, 1889. 
Franklin, W. T. Memoirs of the Life and Writings of Benjamin 

Franklin, 6 vols., 1808-18. 
Furber, H. J. Geschichte und kritische Studien zur Entwick- 

lung der okonomischen Theorien in Amerika, 1891. 
Godwin, W. (a) Enquiry Concerning Political Justice and its 

Enquirer on General Virtue and Happiness, 1793.— (b) The 

Enquirer, Reflections on Education, Manners, and Literature, 

1797.— (c) On Population, being an Enquiry concerning the 

Power of Increase in the Numbers of Mankind, 1820. 
Gouge, W. M. Short History of Paper Money and Banking in 

the United States, 1833. 
Hale, E. E. Benjamin Franklin in France, vol. I., 1887. 
Hiidebrand, K. Benjamin Franklin als Nationalokonom. Hil- 

debrand's Jahrbiicher fiir Nationalokonomie und Statistik, 

Bd. I. 
Malthus, T. R. Essay on the Principles of Population, sixth ed., 

1826. 
McMaster, J. B. Benjamin Franklin as a Man of Letters, 1887. 
Morse, J. T., Jr. Benjamin Franklin, 1889. 
Parton, J. Life and Times of Franklin, 1864. 
Petty, W. Essay on Taxes and Contributions, 1662. 
Phillips, H. Historical Sketches of the Paper Currency of the 

American Colonies, 2 vols., 1865-66. 
Proceedings of the Massachusetts Historical Society, for 1862-63. 
Proud, R. History of Pennsylvania (1681-1742), vol. II., 1797. 



58 Benjamin Franklin as an Economist, [476 

Rae, J. Life of Adam Smith, 1895. 

Ricardo, D. Works, (McCullocli ed.), 1881. 

Smith, A. Wealth of Nations, (Bohn ed.), 1887. 

Sparlis, J. The Works of Franklin, 10 vols., 1840. 

Thorpe, F. ;^enjamin Franklin and the University of Pennsyl- 
vania, 1893. 

Turgot, R. J. CEuvres, (Daire ed.), 2 vols., 1844. 

Tytler, A. F. Memoirs of the Life and Writings of Henry Home 
of Karnes, 3 vols., 1814. 

Watson, J. F. Annals of Philadelphia and Pennsylvania, 2 vols., 
1857. 

Winsor, J. Narrative and Critical History of America, vol. VI., 
1888. 

Webster, P. Political Essays on the Nature and Operation of 
Money, 1791. 



X 



THE PROVISIONAL GOVERNMENT 
OF MARYLAND (1774- 1777) 



JOHNS HOPKINS UNIVERSITY STUDIES 

IN 

HiSTOKICAL AND POLITICAL SCIENCE 
HERBERT B. ADAMS, Editor 



History is Past Politics and Politics are Present Historj— -Freeman 



THIRTEENTH SERIES 



THE PROVISIONAL GOVERNMENT 
OF MARYLAND (1774-1777) 

By JOHN AECHEK SILVER, A. B. 



baltimore 
The Johns Hopkins Press 

PUBLISHED MONTHLY 
OCTOBER, 1895 



Copyright, 1895, by The Johns Hopkins Press. 



JOHN MURPHY 4 CO., PRINTERS, 
BALTIMORE. 



THE PROVISIONAL GOVERNMENT OF 
MARYLAND. 



The form of government which the Lord Proprietor had 
established in the Province of Maryland, and to which it had 
been almost^ continuously subject since its foundation in 1634, 
came to an end in the early struggles of the Revolution. After 
a comparatively short interval, a new constitution was drawn 
up and adopted, and the new government of the State was put 
in the place of the old Proprietary government. But the one 
did not abruptly end, nor the other abruptly begin. The 
powers of the Proprietary government were only gradually 
forced into disuse, to be as gradually assumed by another, ris- 
ing Authority, which eventually established and, in its turn, 
gave way before the new State government. It is the history 
of the government of the Province during this transitional 
period, or of what is known as the Provisional Government 
of Maryland, that this paper is designed to study. It pro- 
poses to trace the powers of that Government in their rise, 
growth, and exercise, from the first expression of the popular 
will, in the Conventions of 1774, in organized resistance to the 
importation of the taxable articles of commerce, through suc- 
cessive Conventions, to the assumption of complete sovereignty 
in establishing and inaugurating a more permanent and fully 



^ During the years 1652 to 1657 and 1691 to 1715, the political overlord- 
ship of the Proprietor was exchanged for that of the Protector and the 
Crown, respectively. 

5 



6 The Provisional Government of Maryland, [482 

organized form of authority in the new State government of 
1777. The thread of interest running through the whole is 
the gradual assumption of sovereign powers by the people in 
Convention until they found themselves the sole Power in the 
Province. This may be marked off in three stages : first, the 
tentative assertion of certain rights and the imperfect and 
undeveloped executive organization of the first year, begin- 
ning with the first Convention of 1774; secondly, the fuller 
and bolder assertion of power and the more organized and 
effective means of execution of the second year ; and, finally, 
the Provincial declaration of independence, the framing of a 
new constitution, and the setting-up of a new government. 
In the first period, the new, rising Power struggled to a posi- 
tion of equality with the Proprietary Power, as a second Au- 
thority in the Province ; in the second, it became the chief 
Power and overshadowed the old Authority; and, in the 
third, it cleared the field of its rival and sat supreme, yielding 
up its existence, finally, to the child of its own begetting. 



The Provisional Government, as before suggested, did not 
spring forth full-fledged, Minerva-like, from the brains of 
the cleverest statesmen, but was of gradual growth. In its 
origin, it was nothing more than an association of the freemen 
of the Province for the purpose of rendering an effective resist- 
ance to the encroachments of the English Government and 
of defending themselves, meanwhile, in the exercise of their 
rights. Its roots strike down to the non-importation agree- 
ment previously entered into for the purpose of commercial 
opposition, and the organs used in its exercise were the same 
as those originated by its forerunner. The prototype of the 
future Convention first appears in the meeting of some of the 
inhabitants at Annapolis, June 20, 1769, in response to the 
call of a few merchants for the purpose of pledging themselves 
to a non-importation agreement, and the organs of the earlier 



483] The Provisional Government of Maryland, 7 

ProvisioDal Government may first be seen in the central and 
county committees originated by that meeting to enforce its 
resolutions. As yet, however, the functions of correspondence 
and observation were combined in the same committee. In 
October, 1773, the Provincial Assembly appointed a special 
committee of correspondence for the whole Province, whose 
duty was to obtain full and early information as to the doings 
of the British Parliament, and to communicate with the sister 
colonies on the subject of defense. 

Various causes had, however, contributed to prevent the 
development of this earlier action until the startling news of 
the passage of the Boston Port Bill and of the oppression of the 
people of Boston arrived in May.^ At once, ^^ a meeting of 
the principal inhabitants [of Baltimore] was called, and a 
committee of twelve persons was appointed to correspond with 
Boston, the neighbouring colonies, and particularly with the 
towns of the Province, to collect the public sense of this 
important concern."^ The committee sent the news on to 
Annapolis and to the different parts of the Province. Public 
feeling ran high in sympathy with the oppressed Bostonians,^ 
and the counties were not slow to respond. All minds were 
turned to the revival of the non-importation agreement, and, 
to this end, a general meeting at Annapolis naturally suggested 
itself. During the latter part of May and the early part of 
June, the inhabitants of the counties met at their respective 
courthouses, or other convenient meeting-places, and passed a 
series of resolutions^ recognizing the cause of Boston as the 

^ Samuel Adams transmitted the news, together with a resolution of the 
Boston town-meeting of May 13th, " that if the other colonies would come 
into a joint resolution to stop all importations from Great Britain, and 
every part of the West Indies, till the Act blockading up the harbor be 
repealed, the same will prove the salvation of North America and her 
liberties." See Scharf's Hist, of Md., II, 143. 

^ Letter of the Baltimore committee to the Boston committee of June 4th, 
quoted in Scharf's Hist, of Md., II, 146. 

' Eddis' Letters, May 28, 1774. 

* For the resolutions of the different county meetings, see the Maryland 
Gazette, June 2, 9, 16, and 30, 1774. 



8 The Provisional Government of Maryland. [484 

common cause of all the colonists, and the duty of each and 
all to unite in effectual means to obtain a repeal of the obnox- 
ious Act.^ To this end, they expressed themselves strongly in 
favor of a union of all the colonists pledged neither to import 
to, nor export from. Great Britain any articles of commerce, 
and they agreed to enter such a Provincial and Continental 
Association under oath, and to break off all trade and dealings 
with that colony, county, or town that should refuse to enter 
such an Association. In order to carry out these resolutions, 
each county elected a committee to correspond with the other 
counties and keep themselves informed of the rapid progress 
of events, and also a committee to represent them in the 
general meeting of all the county committees soon to be held 
at Annapolis. 

Upon the assembling of these deputies in the first Pro- 
vincial Convention ^ on June 22, and, after deciding to deter- 
mine all questions by a majority vote by counties, the letters 
from Boston, Philadelphia, and Virginia, recently received, 
and the recent parliamentary bills against the colonies, were 
laid before them, and, " after mature deliberation," they re- 
solved that the bills in question were " cruel and oppressive 
invasions" of the natural and constitutional rights of the 
people of Massachusetts. They reiterated the recent resolu- 
tions of the county meetings, endorsed the plan of a non-im- 
portation and non-exportation union, and they agreed to enter 
such a union and to break off all trade and dealings with those 
who should refuse to join it. They further suggested to the 
merchants that they ought not to take advantage of the scarcity 
of goods under the non-importation agreement, soon to be en- 
forced, to raise their prices. They thanked the friends of lib- 

^" Nothing can be plainer than that the suffering of Boston is in the 
general cause of America, and that union and mutual confidence is the basis 
on which our common liberties can only be supported." Letter of the 
Annapolis committee of correspondence to the Baltimore committee, May 
26, 1774. 

^ See Proceedings of the Conventions of the Province of Maryland^ pp. 3-5. 



485] The Provisional Government of Maryland, 9 

erty in Great Britain for their patriotic efforts to prevent the 
present calamity ; they resolved to open a subscription in the 
several counties for the poor of Boston, and they appointed 
delegates *^ to attend a general congress of deputies from the 
colonies, at such time and place as may be agreed on, to effect 
one general plan of conduct, operating on the commercial con- 
nexion of the colonies with the mother country, for the relief 
of Boston and preservation of American liberty." 

Although not the first of its kind, for the meeting of the 
merchants and freemen in 1769 was for the same purpose, this 
Convention stands out distinct in its representative character 
and in the permanent nature of its results. It was attended 
by ninety-two deputies, many of whom were among the best 
men of the Province, who had been elected in the usual way 
by the freemen of the counties and who were, therefore, really 
representative of the mass of the people. Moreover, it was 
the only representative assembly in the Province at the time, 
for the legislative Assembly had been prorogued in the pre- 
vious March and was not destined to meet again until under 
a new regime. Though the Proprietary Government was still 
active in the exercise of its functions, and the people had no 
desire as yet to overthrow it, it is nevertheless true that the 
voice of the people, through their representatives in Conven- 
tion, spoke from the source of sovereign power and, though 
their resolutions applied only to the regulation of their com- 
merce, they soon made it apparent that they meant to exercise 
sovereign authority therein. Standing as it did at the begin- 
ning of a long line of similar Conventions, each of which was 
to exhibit the people in the exercise of a larger degree of 
sovereign power, it may be looked upon as embodying the 
nucleus of the Provisional Government. 

Events soon occurred to try the value of these resolutions. 
In August, the brigantine Mary and Jane arrived in the har- 
bor of St. Mary's river with some chests of tea, consigned to 
merchants in Bladensburg and Georgetown. The Frederick 
county committee called a meeting of the freemen, and re- 



10 The Provisional Government of Maryland. [486 

quested the consignees of the tea to be present. Upon which 
occasion, it was resolved that such an importation of "the 
detestable plant '^ was dangerous to the liberties of the colon- 
ists, in that it assented to the claim of the British Parliament 
to tax them, and, in order to prevent the pernicious practise 
of further importations of the kind, the vessel, with its tea, 
was ordered and compelled to sail back to England.^ A more 
notable instance of the same kind occurred in October, on the 
arrival of the brig Peggy Stewart at Annapolis, with tea on 
board, when the owner of the vessel, although not the con- 
signee of the tea, and a member of the Non-Importation 
Association, paid the duty on it. A general meeting of the 
citizens censured the proceeding, and a larger meeting of 
county delegates was called to consider the matter. Mr. 
Stewart, the owner of the vessel, published an apology, and 
offered to burn the tea publicly to appease the people's wrath. 
Nothing was done, however, until the larger meeting assembled, 
when considerable animosity was manifested toward him and 
the owner of the tea, and they were made to present themselves 
and sign a humiliating paper. But, upon the question being 
put, " Whether the vessel should be destroyed ? '', it was decided 
in the negative by a considerable majority. Yet Mr. Stewart, 
" from an anxious desire to preserve the public tranquillity, as 
well as to ensure his own personal safety," went on board, run 
the vessel aground, and, in view of all the people, set fire to 
it with his own hands and let it burn to the water's edge.^ 

Meanwhile, all eyes were turned on the Continental Con- 
gress, in session from September 5 to October 26 at Phila- 
delphia. The deputies from twelve colonies there signed cer- 
tain Articles of Association, pledging their colonies not to 
import any articles of commerce whatsoever from Great Britain 
and Ireland after the first day of the next December, to dis- 
continue any exportation thither after September 10, 1775, 



^Maryland Gazette^ August 11 and 18, 1774. 

=^ Md. Gazette, Oct. 20 and 27, 1774. Eddis'. Letters, Oct. 26, 1774. 



487] The Provisional Government of Maryland. 11 

and to break off dealings with that colony which should not 
join the Association or should violate its Articles.^ 

Shortly after the close of Congress, in the early part of 
November and in response to its direct suggestion, the free- 
men of the counties qualified to vote for representatives to the 
Assembly, met at their respective courthouses and appointed 
a committee " to observe the conduct of all persons touching 
this Association ^^ and to carry its Articles into effect ; also 
a committee of correspondence, frequently to "inspect the 
entries of their custom-houses, and inform each other, from time 
to time, of the true state thereof, and of every other material 
circumstance that may occur relative to this Association."^ 
Deputies to the next Provincial Convention were also appointed. 

In response to the calP of the Congressional delegates of 
the Province, fifty-seven deputies from the counties attended 
the new Convention, which met on November 21st. The pro- 
ceedings of Congress were laid before them and unanimously 
approved of, and it was resolved that " every person in the 
Province ought, strictly and inviolably to observe, and carry 
into execution, the association agreed on by the said Conti- 
nental Congress.'^ But, from the want of sufficient notice, 
several counties were not fully represented, and an adjourn- 
ment was ordered to December 8th, when "matters of very 
great importance " were to be taken into consideration.* 

Eighty-five deputies, a goodly representation of the people, 
were present at this adjourned meeting.^ The chief business 



^ Journals of the American Congress, Oct. 20, 1774. 

- Journals of Congress, Oct. 20, 1774. 
We see here, for the first time, the differentiation of the powers of the 
original committee in the formation of two, one of correspondence and one 
of observation, and we note the fact that this was done at the suggestion of 
the Continental Congress. It is important to emphasize the formation of 
these committees, for they were to be the organs through which the Pro- 
visional Government was to exercise its authority in the several counties. 

^Md. Gazette, ISior. Z, 1774. 

* Proceedings of the Conventions of the Province of Maryland, p. 6. 

5 Ibid., pp. 7-10. 



12 The Provisional Government of Maryland. [488 

before them was the confirmation of the resolutions of the 
Continental Congress, relative to the non-importation and non- 
exportation of articles of commerce, and the passage of certain 
resolutions providing for their enforcement. They, therefore, 
first of all, reiterated the previously expressed approval of the 
resolutions of Congress, they thanked their delegates for the 
faithful discharge of their important trust, and resolved strictly 
to obey and carry out the Association. Following the lead of 
Congress, they endeavored to encourage the home manufacture 
of woolens, linens and cottons, by resolving that no lambs 
dropped before the first day of each May, or other sheep under 
four years of age, ought to be killed ; " that every planter and 
farmer ought to raise as much flax, hemp and cotton as he 
conveniently can,'' and that no flax-seed of the present year's 
growth ought to be exported. The resolution of the previous 
Convention, recommending merchants not to take advantage 
of the scarcity of goods to sell their wares at a much advanced 
price, having been disregarded, they felt called upon to fix the 
percentage by which such advance price should be regulated, 
and they delivered themselves, at the same time, against the 
practice of engrossing merchandise. They resolved that, in 
all cases where the county committee declared a breach of these 
resolutions, no gentlemen of the law ought to prosecute a suit 
in favor of the offender ; they recommended to the people to 
acquiesce in, and observe the determinations of, the several 
county committees; they besought them to put away "all 
former differences about religion or politics, and all private 
animosities and quarrels of every kind," and cordially unite 
in defense of the common rights and liberties. A general 
committee of correspondence for the whole Province was 
appointed, and the other colonies were recommended to enter 
into similar resolutions for mutual defense and protection. 
But, perhaps, the most noteworthy feature of their proceed- 
ings was the resolution to support to their utmost any colony in 
which " the assumed power of parliament to tax the colonies 
shall be attempted to be carried into execution by force," and 



489] The Provisional Government of Maryland, IS 

their determination to raise a Provincial militia. Feeling, as 
they said, that a well-regulated militia is the natural strength 
and only stable security of a free government, and that it 
would relieve the mother country from any expense in their 
protection, and obviate the pretence of taxing them on that 
account; they recommended to all the inhabitants of the 
Province, who were between sixteen and fifty years of age, to 
form themselves into companies, choose officers, provide them- 
selves with arms and ammunition, " use their utmost endeavors 
to make themselves masters of the military exercise," *^ and 
be in readiness to act in any emergency." Moreover, knowing 
the need of money for the purchase of arms and ammunition, 
they authorized the county committees to raise the sum of ten 
thousand pounds, in sums apportioned to each county accord- 
ing to its population, in the way they should each best see 
fit. Finally, the Convention appointed delegates to the next 
general Congress, giving them '^ full and ample power to con- 
sent and agree to all measures which such Congress shall deem 
necessary and effectual to obtain a redress of American griev- 
ances ;" it called a new Convention to meet April 24th, of the 
next year, and directed the several counties to choose deputies 
for the same. 

If, in the Convention of the previous June, we saw the 
germ of the Provisional Government in the meeting of the 
freemen of the Province in Convention, exercising in their 
sovereign capacity the right to regulate their commerce by 
passing a series of resolutions recommending the formation 
of a commercial non-intercourse Association of the colonies 
against Great Britain, we here note its great development in 
the solemn entrance into that Association by the Convention, 
and the formation of the committees of observation and cor- 
respondence, as the organs through which the will of the 
people was to operate in the several counties. But, besides 
this advance from the former resolution of readiness to enter 
such an Association to the present formal participation in it, 
and the formation of organs through which to work, the people 



14 The Provisional Government of Maryland. [490 

in this Convention took a long step forward in the assertion of 
sovereign power by their militia regulations, which, as Mr. 
Bancroft says, ^' took the sword out of the hands of the Gover- 
nor, to whom all military appointments had belonged,'^ and 
gave it into the hands of the people.^ They had up to this 
point, therefore, made a partial use of the sovereign powers of 
the regulation of their commerce and of the raising of a mili- 
tary force for the warlike defense of their liberties, and they 
had, moreover, partially created an organization through which 
their will should be enforced. The Provisional Government 
appears at this stage as no longer in the germ, but as partly 
developed. As yet, however, the resolves of the Convention 
were in the form of recommendations, the execution of which 
depended upon an approving public sentiment. To it con- 
stant appeals were made, and nothing was done without its 
direction and authority. 

Soon after the close of the Convention, and in response to 
its recommendations, the freemen of the several counties met 
to carry out the organization of defense. They unanimously 
approved of the proceedings of the Continental Congress and 
of the late Provincial Convention, and resolved that the terms 
of the Continental Association, lately entered into, should be 
strictly and inviolably observed and executed. They appointed 
persons to offer the subscription-paper for the money to be 
raised for the purchase of arms and ammunition to every free- 
man, and to make returns of the subscriptions, together with the 
names of those who had refused to subscribe, to the end " that 
their names and refusal may be recorded in perpetual memory 
of their principles. '^ ^ Deputies were appointed to the next 
Convention, and the organization of the committees of obser- 
vation and correspondence were completed.^ The people be- 

^ Bancroft, American Revolution, 1, 207. 

^ For example, see proceedings of the Charles County meeting, Md. Gazette, 
Jan. 19, 1775. 

^ For proceedings of the County meetings, see Md. Gazette, Dec. 29, 1774, 
Jan. 5, 19, 26, Feb. 2, and 9, 1775. 



491] The Provisional Government of Maryland, 15 

stirred themselves also in carrying out the militia recommend- 
ations of the Convention. Almost at once, two companies 
were formed in Annapolis/ to be followed soon after by the 
formation of other companies in different parts of the Prov- 
ince.^ There was visible everywhere the spirit of determined 
opposition and the preparation for a military defense.^ More- 
over, the committees of observation and correspondence, hav- 
ing been fully organized, now set to work to enforce the 
Articles of the Non-Importation Association, which went into 
effect on the first of December. Numerous instances occur in 
the columns of the Maryland Gazette of their effective action. 
In those cases in which goods had been imported from Great 
Britain after December 1, they sold them at public auction, 
according to Article X of the Continental Association, and, 
after imbursing the owner for their cost, forwarded the profit 
as a contribution to the poor and needy sufferers of Boston ; ^ 
in case such goods had arrived after February 1, 1775, they 
were not allowed to land, but were sent back to England.^ 
Where anyone tried to import tea, not only was it not allowed 
to land, but the importer was called before the committee and 
obliged to apologize publicly for his daring.^ Merchants who 
tried to sell their goods at a great advance over the cost price, 
thus taking advantage of the scarcity of goods and making 
the means of subsistence hard to obtain, fell under their cen- 
sure.'^ Moreover, those who publicly disparaged the means 
taken to defend the people's rights, and branded them as trea- 
sonable, were brought before them, severely censured, and 
forced to disavow or apologize for their rash words.^ The 
committees were thus a real power in the counties. 



1 Md, Gazette, Dec. 22, 1774. 

2 Md. Gazette, Jan. 5, 12, and 19, 1775. 

3 Eddis' Letters, March 13, 1775. 

^Md. Gazette, Dec. 15, 1774, Jan. 5, Feb. 23, March 2, 1775. 

^Md. Gazette, April 6, 1775. ^ Md. Gazette, Jan. 12, Feb. 2, 1775. 

"^ Md. Gazette, April 13, 1775. ^ Md. Gazette, Jan. 26, 1775. 



16 The Provisional Government of Maryland, [492 

On the 24th of April, 1775, a new Convention of one 
hundred members assembled at Annapolis/ First of all, they 
proclaimed their allegiance to the King "as the sovereign, 
constitutional guardian, and protector of the rights and liber- 
ties of all his subjects/' Then, on hearing of the coming of 
the British troops to New York, they expressed their great 
alarm and deep concern for that Colony, and endeavored to 
inform themselves as to what was expected of them under 
the circumstances. They resolved to stop all exportations to 
British North America until further orders from the Conti- 
nental Congress ; they earnestly recommended to the people of 
Maryland to continue the forming and exercising of the militia 
throughout the Province, as directed by the last Convention, 
and to complete and apply the subscriptions for the purpose 
of providing arms and ammunition. They re-appointed their 
former delegates to Congress, and directed them " not to pro- 
ceed to the last extremity, unless in their judgments they shall 
be convinced that such measure is indispensably necessary 
for the safety and preservation of our lives and privileges," 
remembering that they have " nothing so much at heart as a 
happy reconciliation of the differences between the mother 
country and the British Colonies in North America, upon a 
firm basis of constitutional freedom,'' and they pledged the 
Province, so far as was in their power, to carry into execution 
such measures as shall be agreed on and recommended by 
the general Congress. They " recommended to all ranks and 
denominations of people, to use their utmost endeavors to 
preserve peace and good order throughout this province" ; and, 
in consequence of the distressed state of the colonies, they set 
apart May 11th as a day of public fasting and humiliation. 
They sent a committee to the Governor to ask for the delivery 
of the Provincial arms and ammunition into their hands, fear- 
ing, as they said, an uprising of the slaves in the disturbed 



^See Proceedings of the Conventions, p. 11-16. 



493] , The Provisional Government of Maryland. 17 

state of affairs/ or " that some ship of war may arrive in the 
harbor of Annapolis, whose commander might probably have 
instructions to seize " ^ them. The Governor, upon the advice 
of his Council, agreed to commit the care of the arms to such 
gentlemen of the militia as he himself had appointed, and, on 
the regular application the next day of the militia colonels of 
four counties, under the militia act of the Province, he handed 
over to them about one hundred stand of arras, thus yielding 
to the popularly-constituted authority under the guise of con- 
stitutional form. 

This was the first point of friction of the newly-constituted 
authority with the old regime. The commercial and warlike 
opposition inaugurated by the previous Conventions, and by 
the operations of the county committees, and by the formation 
of the militia had not been considered repugnant to the oaths 
of allegiance, and there was no thought nor desire as yet, nor 
for a long time to come, to break the bonds of union with the 
mother country.^ The people were still loyal in a true sense 
to the King and the Lord Proprietor, and meant to do nothing 
more than defend themselves in the exercise of their cherished 
rights. The importance of this friction with the Governor, 
therefore, was in its forecast, that, while not wishing to inter- 
fere in the administration of their Chief Magistrate, they were 
yet determined in any case of need to assert their real superior 
sovereignty. 

During the next three months of May, June and July, events 
went on accumulating, winning over most men's minds to 
realize the need of a thoroughly organized and decisive defense. 
The alarming news of the first shedding of blood at Lex- 
ington and Concord, and of the battle of Bunker-Hill, two 
months later, made ardent patriots of many former luke-warm 

1 Letter of Gov. Edon to his brother, April 28, 1775, in Scharf s Hist, of 
Md., II, 179. 

2 Eddis' Letters, April 27 and 28, 1775. 

^Proceedings of the meeting of the inhabitants of Baltimore county, 
Jan. 16, 1775, in Md. Gazette, Jan. 26, 1775. 

2 



18 The Provisional Government of Maryland, [494 

sympathizers, and clearly and firmly drew the line of dis- 
tinction between Loyalists and Patriots. On May 26th, Con- 
gress recommended to the colonies to put themselves in the 
best state of defense immediately, and, on June 14th, made 
a call upon Maryland for two companies of riflemen to join 
the forces at Boston. The Frederick county committee 
hastened to raise the companies and started them off by the 
middle of July. A continental army had now been con- 
stituted, with proper rules and regulations, and a commander- 
in-chief appointed ; two million dollars had been issued in 
continental currency, and the colonies had been recommended 
to choose treasurers and make provision for sinking their pro- 
portion of the new bills. 

To take these matters into consideration and to make neces- 
sary provision therefor, the Maryland delegates to Congress, 
under the authority granted to them by the last Conven- 
tion, called the deputies from the several counties in the 
Province, to meet in a new Convention at Annapolis on July 
26th following. 

II. 

With the assembling of this Convention, which was more 
fully representative of the people than any hitherto held, being 
attended by one hundred and forty -one deputies, and which 
came after actual hostilities had broken out, showing the 
extent to which things must go before the adjustment of diffi- 
culties with the mother country, a new epoch begins in 
the relations of the people to the Proprietary Government. 
Already, the Governor had seen the rise of a new Power in 
the Province, and had noted with increasing alarm its rising 
importance. But the Proprietary Government was still the 
permanent form of authority and its civil power was still 
unchallenged. The people had but risen in defense of their 
liberties against the aggressions of the English Government, 
and, although they had asserted the right to regulate their 
commerce and to form a militia in their defense, the Governor 



495] The Provisional Government of Maryland, 19 

sat secure in the exercise of all the other of his powers. This 
Convention, however, was to encroach on his civil power and 
to inaugurate measures which were gradually to overthrow it 
altogether and drive him out of the Province. It is neces- 
sary, therefore, to study its doings in some detail. 

The more important matters for consideration were put 
immediately into the hands of committees.^ While awaiting 
their reports, the Convention took into consideration certain 
petitions from those who had fallen under the censure of 
the county committees for breaches of the Continental and 
Provincial Resolves. They thus became a supreme court of 
appeal, from the judgment of the county committees of observa- 
tion in such matters, and, within these bounds, exercised 
unlimited authority. As seemed best to them, they heeded 
the petitioner's desire and ameliorated the sentence given by 
the county committee on the ground of its being too severe,^ 
or they completely set it aside as not having been founded on 
fact,^ or they upheld it and rejected the petition of the com- 
plainant.^ In one case,^ they were appealed to by a citizen 
who, having gone security for the appearance of another and 
having allowed him to escape, feared that injury would be 
done his person and property ; whereupon they expressed their 
desire that all persons should refrain from all manner of 
violence to that person or his property, and they empowered 
the committee of his county to inquire into the matter, and 
report whether there had been any collusion between the one 



^ Committees were appointed to consider the ways and means to put the 
Province in the best state of defense, to inquire into the practicability and 
expense of establishing manufactories of arms, and to consider of the way 
to lay such restrictions upon the courts of law as may be necessary and 
expedient. See Proceedings of the Convention for July 27, 29, and Aug. 
2, 1775. 

'^Maryland Archives, Journal of the Convention, July 28, and Aug. 12, 
1775. 

^Maryland Archives, Journal of the Convention, Aug. 3, 1775. 

^Ibid., Aug. 12, 1775. "> Ihid., Aug. 14, 1775. 



20 The Provisional Government of Maryland. [496 

« 

who had given the security and the one who had absconded. 
Being " strongly impressed with an idea of the confusion and 
disorder which must inevitably ensue, and the disunion which 
must necessarily follow, from the people at large being collected 
and inflicting punishments before a cool and temperate investi- 
gation of the case, and consequently the injury which may be 
thereby done to the common cause of Liberty," they took 
occasion to express the hope that " the virtue of the people, 
and their attachment to the liberties of America, will guard 
them against the commission of the excess apprehended." In 
another case,^ where certain charges had been preferred by the 
Baltimore county committee against Robert Christie, Sheriff 
of Baltimore county, based on an intercepted letter, in which 
the said Christie represented the inhabitants of Baltimore as 
engaged in treasonable and rebellious measures, and suggested 
that a few British soldiers would keep them very quiet, the 
Convention resolved that the said Christie had shown a spirit 
inimical to the rights and liberties of America and ought to 
be considered an enemy to the country, and that no one ought 
to have any dealings with him except to furnish him with 
necessaries and provisions. They also banished him from the 
Province, ordering him, meanwhile, to place in the Treasurer's 
hands the sum of £500 sterling, as his proportion of the 
charges and expenses incurred in the defense of America. 
These acts mark a new departure in the Convention's exercise 
of power. Hitherto, the committees of observation had used 
a police power in the enforcement of the non-importation 
agreements, but now, for the first time, we see that power used 
by the Convention to quiet the people and preserve public 
peace and order, and to banish a political offender and confis- 
cate a portion of his goods. The Governor still had his sheriffs 
and magistrates, but they were now afraid to exercise their 
functions against the people, and the Convention found itself 



Md. Archives, Journal of the Convention, Aug. 7, 1775. 



497] The Provisional Government of Maryland, 21 

occupying their place as supreme arbiter and preserver of the 
public peace. 

The committee appointed to consider the means of putting 
the Province in the best state of defense, reported in favor 
of the formal association of the freemen, as a first measure. 
Every freeman was to be urged to sign a document, prepared 
by the committee for the purpose. The document rehearsed the 
people's grievances against the English Government, the chief of 
which were the determined purpose of the latter to tax the colo- 
nists without their consent, to alter their Charters and Constitu- 
tions at will, and to subdue them by military force. It recited 
the course of the Continental Congress with reference to these 
facts, and the suggestion of the Congress to the colonies to put 
themselves in the best state of defense. In signing this docu- 
ment, the freemen solemnly pledged themselves, to one another 
and to America, to unite in approving the armed opposition 
of the colonists to the British troops, being firmly persuaded 
of the necessity of repelling force by force. They were also 
to unite in promoting and supporting, to the utmost of their 
power, the armed and commercial opposition already begun. 
Finally, realizing that the energy of the civil government was 
greatly impaired, they were to unite and associate in the main- 
tenance of good order and the public peace, to support the civil 
power in the execution of the Laws, so far as was consistent 
with the plan of opposition, to defend every person from every 
species of outrage to person or property, and to prevent any 
punishment from being inflicted on any oifenders, other than 
such as should be adjudged by the Civil Magistrate, Congress, 
the Convention, the Council of Safety, or county committees 
of observation. The members of the Convention were the first 
to sign the Association, and, then, it was ordered to be pre- 
sented by the county committees of observation to all the free- 
men within the Province, and a return was to be made to the 
next Convention of the names of all those who should sign it, 
and of all those who should refuse to sign it, " to the end that 
the Convention may take order therein." 



22 The Provisional Government of Maryland. [498 

This " Association of the Freemen of Maryland " has been 
spoken of as if it overthrew the Proprietary and inaugurated 
the Provisional Government/ and as if it were the basis and 
cornerstone of the latter.^ The impression is given that it was 
the charter of liberties, so to speak, of the Provisional Govern- 
ment, which, accordingly with it, suddenly sprung into being 
and overthrew the previous forms of authority. But, as I 
have tried to show in the foregoing, this new Power grew up 
only gradually, and had, previous to this time, actually exer- 
cised some very important functions of governmental authority. 
There was also no intention of the people as yet to withdraw 
their allegiance from the King and the Proprietor, and no 
desire to throw off the existing forms of control even now. 
Moreover, this document, although very important, contained 
little that was new. The freemen simply agreed formally to 
unite, firstly, in approving the use of force in repelling force ; 
secondly, in promoting the present commercial and armed 
resistance ; and, thirdly, in upholding the power of the Civil 
Magistrate in preserving order. The Governor's powers were 
not thus done away; the sheriffs, magistrates, justices, and 
Provincial officers generally, still held their commissions from 
him, and there was no attempt to remove them. The only 
new things in the document were, first, the formal and bind- 
ing character of its resolves, and, second, the placing of the 
organs of the new order of things, namely, the Continental 
Congress, the Convention, the Council of Safety, and the com- 
mittees of observation, on the same plane of authority with the 
civil power of the Governor. These Articles of Association 
did not, therefore, originate the Provisional Government, 
nor did they exhibit it as having suddenly arisen and over- 
thrown the former Authority. They were not primarily con- 
cerned with government at all, but with the union of all the 
freemen in a commercial and armed defense of their liberties. 



1 See Scharf, Hist, of Md., II, 183 f. 

2 See McMahon, Hist, of Md., 416. 



499] The Provisional Government of Maryland. 23 

. But, incidentally, they show us the Provisional Government 
as having emerged from its former state of tentative beginning 
and as acting, side by side, with the old forms of power, and 
with at least as much authority. 

To carry on the armed resistance, the Convention provided 
for the purchase and importation of arms and ammunition,^ 
for the erection of a powder mill,^ for the establishment of 
saltpetre manufactories in different parts of the Province,^ 
and for the complete formation and organization of a military 
force.* Forty companies of minute-men were directed to be 
enrolled, each county being required to furnish its proper 
quota. All the other able-bodied effective freemen, except 
clergymen, physicians, those of the Governor's household, and 
such as objected on religious scruples, were directed to enrol 
themselves as soon as possible in some company of militia, and 
swear an oath of allegiance to the Convention or Council of 
Safety to march whenever and wherever they should direct. 
The committees of observation were to appoint enlisting 
officers, and, as soon as enlisted, the minute-men and militia 
were to assemble and elect their officers, the names of whom 
were to be sent to the Convention or the Council of Safety, 
whereupon commissions were to issue to them. Regulations 
were made regarding the formation of the companies into 
battalions, with one company of light infantry to each battal- 
ion ; rules were made regarding the exercise and conduct of 
the troops, and the rank of the officers. Finally, the county 
committees were ordered to make diligent enquiry after, and 
report the names of all those who should refuse to enrol them- 
selves, according to the resolves of the Convention, and against 
all such no further proceedings were to be taken but by its 
future order. 

For the purpose of raising and arming the military force, 
and for encouraging the manufacture of salt-petre and powder, 



^ Md. Archives, Proceedings of the Convention, Aug. 14, 1775, p. 30. 
2 Ibid., p. 29 f. 3 j5j^,^ p, 30. 4 ji,id,^ pp. i6_22. 



24 The Provisional Government of Maryland. [500 

money was needed, and the Convention, following the lead of 
Congress, now, for the first time, made use of the power to 
issue bills of credit.^ Supervisors were appointed to procure 
proper plates and paper, and to have bills issued to the amount 
of 266,666f dollars, each of which bills was to entitle the 
bearer to receive gold and silver at the rate of four shillings 
and six pence per dollar. They were to be issued on the 
credit of the Province, and to be redeemed and sunk on or 
before January 1, 1786, by taxes or other legislative provi- 
sion, for which purpose the Convention bound its constituents, 
and pledged the faith of the Province. Two treasurers were 
appointed, one for each Shore, to receive and pay out the 
money, subject to the orders of the Convention and the Coun- 
cil of Safety. Thus a new power of government was made 
use of by the people in Convention in drawing upon the credit 
of the Province to issue bills to enable them to carry out their 
revolutionary measures. 

But they were to go still farther and interfere with the ope- 
ration of the courts of law and virtually direct their proceed- 
ings.^ They resolved that all suits pending, in which there 
was no real dispute, be settled speedily in some amicable way, 
and that all suits in which there were real disputes, and which 
could not be settled amicably, or tried with justice to the 
parties concerned, be discontinued, during the times of public 
calamity, until otherwise ordered by a future Act of Assembly 
or resolve of Convention, and that the future Assembly ought 
to take measures to bar the Act for the limitation of suits and 
provide for their reinstatement. They made a further regu- 
lation to the effect that where witnesses could not be present 
at the trial, depositions might be taken before justices of the 
court and in the presence of the adverse party. But their 
most important action with reference to this subject was to 
provide for the election by each committee of observation of a 



^ Md. Archives, Proceedings of the Convention, Aug. 14, 1775, pp. 24-27. 
^Ihid., Aug. 14, 1776, pp. 31-33. 



501] The Provisional Government of Maryland. 25 

committee of seven, from its own number, who were to meet 
on the first and third Mondays of each month to grant per- 
mission for the trial of suits. Certain actions ^ might be com- 
menced or continued without applying for its permission, while 
in all other cases it must be sought. In certain ^ of these lat- 
ter cases, the Committee, when applied to, were obliged to give 
licences to carry on the suit, whereas in other cases ^ they were 
allowed to use discretionary power. Moreover, judgments 
which had been obtained since the court terms of the last 
spring on suits begun in any other way than those above men- 
tioned, were ordered to be stayed of execution. While the 
Proprietary Courts still exercised their functions, the Conven- 
tion by this action asserted the power to control them. The 
licensing committee was its agent, and though certain suits 
could be begun without licenses, it had decided what such 
should be, and in all cases had exercised direct restrictive 
authority. Another stage in its assertion of power is thus 
marked. 

That the orders and regulations of the Convention might 
be carried into execution, it was felt necessary to provide for 
the appointment of some executive organ, which should act 
during its recess. Accordingly such a body was appointed, 



' E. g., those " founded in the wrong done to the person or property, such as 
Ejectment, Trespass, Trover, Replevin, Detinue ; also all real Actions ; also 
actions for wards, and for Money or Tobacco actually had and received by 
one person for the use of another; Attachments under the late Acts of 
Assembly, and against persons non-resident; actions, or process on Loan 
Bonds." Md. Archives, Proceedings of the Convention, Aug. 14, 1775, p. 32. 

^ E. g., actions " where debtors refuse to renew their obligations, or other 
securities, or to give reasonable security, or to liquidate and settle their 
accounts, and give Promissory notes for the balances, or to refer their dis- 
putes, if any, to one or more indifferent persons, or are justly suspected of 
intention to leave the Province, or defraud their creditors." Md. Archives, 
Proceedings of the Convention, Aug. 14, 1776, p. 32. 

^ E. g., actions brought " by and against Executors and Administrators, 
as such, and their securities, and .... against Guardians for the recovery 
of filial portions, or the Rents and profits of orphans' Estates." Md. 
Archives, Proceedings of the Convention, Aug. 14, 1775, p. 32. 



26 The Provisional Government of Maryland. [502 

under the name of the Council of Safety, consisting at first ^ 
of sixteen members, eight from each Shore, whose term of 
official life was to continue to the close of the next succeeding 
Convention, then to give place to a newly elected Council. 
Its chief function was to act as the executive agent of the Con- 
vention, but it possessed as well discretionary powers of a very 
high order. It had control of the military force of the Prov- 
ince, with power to issue commissions, appoint court martials, 
and displace officers ; it could call out the troops whenever 
and order them wherever it thought best, with the single re- 
striction that it could not order the militia out of the Province 
nor the minute-men further than the adjoining counties of the 
neighboring colonies. Moreover, it could do whatever it 
should see best for the defense and security of the Province ; 
it could issue orders on the Treasurers for the payment of 
expenses, and could require reports from them as to their 
doings. It was a sort of high court of appeal, exercising 
judicial functions upon those cases sent to it by the county 
committees, involving breaches of the Continental Resolves. 
These powers, too, could be used in cases of emergency by a 
majority of the members for either Shore ; five men could, 
thus, at times, exercise supreme control over their respective 
Shores, but it was recommended that such powers should be 
exercised by such a few only in cases of great emergency, and 
that, as soon as possible thereafter, a general meeting of the 
whole Council be called and the matters laid before it. The 
Council thus exercised executive and judicial and, on occasion 
and to a limited degree, legislative functions as well. It drew 
its powers from the Convention, as the latter, in turn, drew 



^ The number was afterwards changed to nine, five from the "Western and 
four from the Eastern Shore. Though it was originally the idea of the 
Convention to cause half of the number to retire at each new election, to 
prevent " any abuse of power from the continuance of authority in the same 
hands," yet, after the reduction of the number from 16 to 9, the same mem- 
bers were reelected at each new election, with an insignificant exception or 
two. 



603] The Provisional Government of Maryland. 27 

its powers from the people, and each was responsible for the 
use made of them to its originator. Though, therefore, such 
extensive powers were placed in such a few hands, they do not 
seem to have been abused, which fact was due to the excellent 
character and good sense of those to whom they were com- 
mitted. 

In order to carry out their regulations in the counties, the 
Convention ordered a reelection of the committees of obser- 
vation. They had heretofore, as has been seen, been of great 
use in putting into effect the non-importation resolutions and 
in forming the militia. But they had been of a more or less 
incomplete and temporary nature. Now, it was ordered that 
they should be elected in each county, varying in number 
from 53 in Frederick to 14 in Caroline county, by all the 
freeholders and other freemen " having a visible estate of £40 
sterling," ^ on a set day, the second Tuesday of the next Sep- 
tember, and they were to hold office for the year following. 
Their duties were to be the same as before : to carry into effect 
the Continental and Provincial resolutions ; to keep a sharp 
lookout for breaches of the same ; to call the offenders before 
them and censure them as they saw fit ; and, when they might 
have probable proof that anyone was gailty of any great 
offense, such as would tend to disunite the people, they were 
to cause the arrest of the offender and send him to the Council 
of Safety for trial. They were, further, to have charge of the 
correspondence of the county, and to elect from their own 
number five persons to attend to it; they were also to choose 
seven of their number to be a committee to license suits. They 
thus became the real and effective authorities in the counties, 
and the people were ordered to respect and acquiesce in their 
determinations. 

Before concluding, the Convention appointed delegates to 
Congress to serve until the next Convention, with " full and 



^ The qualification of those entitled to vote for burgesses under the Pro- 
prietary regulations. 



28 The Provisional Government of Maryland, [504 

ample power to consent and agree to all measures which such 
Congress shall deem necessary and effectual to obtain a re- 
dress of American grievances";^ it called a new Convention 
to meet in the next March, and directed each county to elect, 
in the regular way at its September election, five delegates, 
with full power to represent and bind the county to the con- 
clusions of the Convention. Finally, it recommended to all 
the people to " pay the public taxes, and interest money due 
the Loan office, it being the design of this Convention to pre- 
vent oppression and imprisonment of poor Debtors, but not to 
give any pretence of non-payment to those who are of suffi- 
cient ability to pay their just debts," ^ and, hearing that cer- 
tain military captains had lent their ajd in suppressing a riot 
in Baltimore county in which a mob had snatched from the 
sheriff a man imprisoned for debt, and that they had returned 
the man to the custody of the sheriff, they communicated their 
approval to the captains, and put on record their intention 
to support the civil power in the ordinary administration of 
justice. 

In looking at the work of the Convention as a whole, it is 
impossible not to notice a great advance in its exercise of the 
powers of government. In fact, the tendency seems to be to 
magnify its importance unduly, and to see in it the sudden 
formation of a new Authority, while, as a matter of fact, that 
Authority had been made use of before. But, while previous 
Conventions had concerned themselves only with a commercial 
and armed opposition to the measures of the British Govern- 
ment, this one felt it its duty not only to carry on this oppo- 
sition to its utmost ability, but, in the overawed state of the 
Proprietary Government,^ to provide also for the maintenance 
of the public peace. To sum up its actions, it had ordered the 



^ Proceedings of the Convention, Aug. 14, 1 775, p. 34. 
2 26id, p. 33. 

^ See Eddis' Letters^ July 25, 1775 ; also Thomas Johnson's letter of Aug. 
18, 1775, to General Gates, quoted in Scharf's Hist, of Md., II, 186. 



505] The Provisional Government of Maryland. 29 

enlistment of all the people into military companies ; it had 
provided for their organization and control ; it had issued bills 
of credit on the credit of the Province ; it had framed Articles 
of Association, calling upon all to unite in promoting the com- 
mon cause. To obviate any hindrance to the people in their 
patriotic efforts, it had assumed a censorship over the courts; 
it had acted as a supreme court of appeal in all cases involv- 
ing breaches of the Continental Resolves; and, for the pur- 
pose of carrying out its orders, it had established an executive 
body for the whole Province,^ and had reformed the executive 
organs of the counties. It had thus made use of all the func- 
tions of government^ — executive, legislative, and judicial. 
Yet, in all this, it was but true to its raison d^Ure, that is, to 
carry on an effective resistance, and, in making use of so many 
new sovereign powers, it had no intention of overthrowing 
the Authority that had hitherto exercised them.^ The people 
were still loyal to the Powers across the sea, and almost an- 
other year was to go by before that loyalty was to be with- 
drawn. The authority of the Governor and his civil agents, 
though mainly formal,^ was still respected and obeyed, but, 
by these successive assertions of power by the Convention, the 
Proprietary Government had received a shock from which it 
was never to recover, and henceforth, in comparison with its 
past, was more of a shadow than a reality. From this time 



^ For the Governor's opinion of the Council of Safety, see his letter of 
August 27, 1775, quoted in Scharf's Hist, of Md., II, 188, as having been 
written to an English nobleman. I am indebted to Dr. B. C. Steiner for 
the information, obtained after a careful investigation of the matter, that 
this letter was really addressed to Lord Dartmouth, Secretary of State for 
the Colonies, and was the one the answer to which was intercepted, and 
caused so much trouble in Maryland, and finally the departure of the Gov- 
ernor. 

2 See Eddis' Letters, Aug. 24, 1775. 

^ See Address of the Council of Safety to Gov. Eden. Proceedings of the 
Convention, Md. Archives, p. 72. 

* See Letter of Thomas Johnson to General Gates, Aug. 18, 1775, quoted 
in Scharf's Hist, of Md., II, 186. 



30 The Provisional Government of Maryland, [506 

on, the new government was plainly the chief Power in the 
Province^ but it confined itself to the promotion of defensive 
measures, leaving still to the old Power many of its func- 
tions, and, where necessary, even aiding it and counselling the 
people to obey it. 

Soon after its close, and in accordance with its direction, 
the people assembled in the various counties and ratified its 
acts by choosing committees to carry them out,^ and, though 
we hear in one instance ^ of strife at the polls, owing to party 
prejudice, yet, on the whole, the elections passed off quietly, 
and the people with great unanimity supported the doings of 
the last Convention. The committees were busy in enforcing 
the Continental Resolutions; in seeing to the enlistment of 
the militia ; in presenting the Association document to every 
freeman to sign ; in taking a general account of the arms in 
the counties ; and in noting the names of those who refused to 
enlist and to sign the Association ; while the Council of Safety 
was chiefly engaged in contracting for the manufacture and 
furnishing of arms and ammunition, and in granting commis- 
sions to the military oflicers. On one occasion, on the rumored 
approach of the enemy's war vessels, the Council of Safety 
recommended the public oflicers of the Proprietary Govern- 
ment at Annapolis to make ready to remove their public docu- 
ments at a moment's notice, thus subjecting the Proprietary's 
record officers to their direct control. On the whole, the 
machinery of the new control worked well and smoothly. We 
read in Eddis' Letters^ of one instance where some over ardent 
patriots tried to get a public meeting of the citizens of Annap- 
olis to brand all those who had refused to sign the Association 
as enemies of America, and tried to have them banished, and 
such events may have been repeated elsewhere, but they were 
soon frustrated by the good sober sense of the people, and 



^See Md. Gazette, Sept. 14, 21, 28, and Oct. 19, 1775. 
2 See Eddis' Letters, Sept. 27, 1775. 
•* Eddis' Letters, Sept. 27, 1775. 



507] The Provisional Government of Maryland. 31 

the authority of the Council of Safety was upheld in such 
matters. 

Towards the close of the year, it was felt to be necessary 
that the people should again assemble in Convention to take 
measures to put the Province in a better state of defense, and 
provide for a more complete and compact organization of the 
military force. Accordingly, at the call of the Council of 
Safety, the newly elected deputies gathered at Annapolis on 
December 7. They agreed to change the nature of the mili- 
tary forces somewhat in providing that no further minute-men 
should be enlisted, and that those already enlisted under the 
regulation of the last Convention should be paid off, and be 
disbanded by the first of the next March. On the other hand, 
every able-bodied freeman between the ages of sixteen and 
fifty was directed to enrol himself in the militia before that 
time under penalty of a fine and the delivery of his arms to 
the committee of observation for his county. All those newly 
enlisting, as well as those who had previously done so, were 
to take the oath of allegiance to the Convention and to the 
Council of Safety. To put the Province in the best state of 
defense at once, they ordered one battalion of regulars, seven 
independent companies, and two artillery companies to be im- 
mediately raised and put in the public pay, and they proceeded 
to elect their of&cers by ballot and issue commissions to them. 
They divided the Province into five military districts, with a 
brigadier-general over each ; they stationed troops wherever 
they thought best, and they handed over the direction of them 
to the Council of Safety. To encourage the making of arms 
and ammunition, they resolved upon the erection of a gun- 
lock manufactory at Frederick, of a saltpetre manufactory in 
each county, to be run under the direction of a specially 
appointed supervisor, and they decided to carry out the resolve 
of the last Convention, to erect a powder mill where the salt- 
petre might be made into powder. 

Besides these measures of defense, they resolved to encourage 
home industry, and advances of certain sums of money were 



32 The Provisional Government of Maryland. [508 

ordered to certain individuals for the manufacture of linen, 
for the working of lead veins, and for the building of a roll- 
ing, slitting, and sheeting mill. They resolved that the Par- 
liamentary post should be prohibited from travelling in and 
through the Province, and they enjoined the committees of 
observation to enforce this regulation. They resolved that no 
boat belonging to the Province should leave its shores without 
a license from them or the Council of Safety, or a committee 
of observation, stating its destination ; and if any skipper 
should go to any other place, unless absolutely necessary, or 
carry any person or letter, of which due notice should not have 
been previously given, he and all those accessory to such mis- 
behavior were to be liable to imprisonment.^ They also issued 
bills of credit to the amount of 535,1 Hi dollars, to be redeemed 
and sunk before January 1, 1786, the former issue to be re- 
deemed by these new bills and then to be destroyed. They laid 
out a new district in Frederick county, and directed its inhabi- 
tants to elect a deputy to the Convention and a committee of 
observation. They exercised, moreover, the same police power 
that former conventions had made use of. A. deputy who had 
broken the Continental Resolves was deprived of his seat and 
a new election was ordered to fill his place ; one person, who 
would not enrol in the militia, and who prevented others from 
so doing, fell under their censure, and, in general, they exer- 
cised the right of sitting in judgment on all actions injurious 
to the cause of liberty. They manifested their intention of 
upholding the civil administration of the Proprietary's func- 
tionaries in recommending that the taxes assessed by the last 
Assembly be collected ; of disproving of the non-payment of 
the levies; in offering to aid the officers in collecting them ; and 
in handing over a person charged with misconduct to a civil 
magistrate, that order might be taken therein according to the 
due course of the law. The committees of observation were 
directed to present the " Association " to every freeman who 

^Proceedings of the Convention, Dec. 12, 1775. 



509] The Provisional Government of Maryland, 33 

had not yet signed it, and it was ordered that all those who 
should refuse to do so before April 11 next, should give up 
their arms or be forcibly disarmed by the committee, who 
might also, in their discretion, require bond of non-subscribers 
for good behavior. If they should wish to leave the country, 
they were to be free to do so and to take their goods with them ; 
but if they should leave their estates behind, these were to be 
burdened with a share of the common expense. In refractory 
cases, the committee was given the power to imprison. 

This Convention, like its predecessors, made use of all the 
different powers of government, and yet, at the same time, it 
permitted and aided the old regime in the exercise of much of 
its civil power. There was little new in its resolves, but it is 
especially interesting from the declaration of its attitude to the 
Crown and Parliament of Great Britain and to the questions 
of Independence and State Federation, which were then deeply 
agitating the minds of the colonists.^ In electing their dele- 
gates to the Continental Congress, heretofore, they had usu- 
ally given them '' full and ample power to consent and agree 
to all measures which such Congress shall deem necessary and 
effectual to obtain a redress of American grievances." ^ At 
this time, however, it was felt to be a matter of so much deli- 
cacy that a committee was entrusted with the drawing up of 
a formal detailed document of instructions. The mildness 
and equity of the English Constitution, to which they owed 
their blessings of prosperity and happiness, were recalled to 
mind, and they gave it as theh* judgment that it was the best 
known system " calculated to secure the liberty of the subject, 



^ It is important to value rightly the conservative peace-making influence 
of Governor Eden in mediating between the English Government and the 
Patriots in the Province. His judicious but difficult conduct aided greatly 
in keeping Maryland free from British troops, and in restraining the over- 
zealous and ultra-radical patriots from forcing Independence before its time. 
It was during his absence from the Province in the summer of 1774 that the 
spirit of opposition burst forth in organized resistance. 

^ Proceedings of the Convention, pp. 36, 10, 41. 

3 



34 The Provisional Government of Maryland. [510 

to guard against despotism on the one hand, and licentiousness 
on the other." They recommended to their delegates "to keep 
constantly in view the avowed end and purpose for which these 
colonies originally associated, — the redress of American griev- 
ances, and securing the rights of the colonists." They directed 
them, in case any proposition should be made by the Crown 
or Parliament leading to a happy reconciliation on the grounds 
of constitutional freedom, to do all in their power to further 
it, and not to assent to any proposition of independence or 
foreign alliance or colonial federation leading to a separation 
with the mother country, unless they should deem it absolutely 
necessary for the preservation of colonial liberties. If such a 
proposition should be assented to by a majority of the colonies 
in Congress, their delegates were to call a meeting of the Con- 
vention at once, and to know that the Province would not be 
bound by such an assent except by the vote of its representa- 
tive body. They were, however, directed to join with the 
other colonies in all necessary means of defense until the 
Peace.^ Moreover, in referring to the King^s speech of the last 
October, and to the responding addresses of Parliament, they 
left no doubt as to their position. They expressed their strong 
attachment to the English Constitution and their affection for 
the House of Hanover, and affirmed, that to be free subjects 
of the King of Great Britain was, in all its consequences, to 
be the freest members of any civil society in the known world, 
and they disclaimed any desire for independence, maintaining 
that their only motive in taking up arms was to defend their 
lives and liberties.^ 

The new Council of Safety sat nearly every day, and occa- 
sionally, under press of business, on Sunday, busy in carrying 
out the resolves of the Convention and of Congress. It was 
chiefly engaged in issuing commissions to militia officers ; in 
arranging for the victualling and clothing of the troops ; in 



^ Proceedings of the Convention, Jan. 11, 1776. 
^Ihid., Jan. 18, 1776. 



511] The Provisional Government of Maryland, 35 

contracting for the making of arms and ammunition ; in issu- 
ing orders on the Treasurers to pay subsist and advance money 
for the support of the troops ; in seeing to the fortifications of 
Baltimore and Annapolis ; in issuing instructions and sailing 
orders to the captains of vessels exporting provisions from the 
Province ; and, in general, in executing measures of defense. 
It did not hesitate to issue orders to the Proprietor's Commis- 
sary and Land officers and to the clerk of the Provincial court 
at Annapolis, but its directions were by no means arbitrary, 
and it frequently backed up its acts by reference to the resolves 
of the Convention. 

The business of the courts was going on as previously 
arranged ; the Proprietor's officers were duly executing their 
functions, and the Governor himself was sitting quietly at 
Annapolis, greatly respected, and ostensibly possessed of his 
authority, though he was wise enough to pursue a policy of 
inactivity and, where possible, to exert his powers for the 
making of peace. But events were soon to occur which were 
to make his departure necessary, and thus to loosen greatly 
the bond which bound the Province to its Proprietor. 

In the latter part of March, a certain Alexander Ross, on 
returning from a visit to Lord Dunmore's fleet, whither he 
had gone on private matters, was stopped by a Virginia cap- 
tain of militia, and on his person were found some letters 
addressed to Governor Eden, more particularly, a circular let- 
ter and a private letter from Lord George Germaine.^ In 
the most important one. Governor Eden's zeal for the public 
service, and the unalterable attachment shown by him to the 
King's person and government, was approved of. A letter 
from him containing *^ a great deal of very useful information," 
and a "confidential communication of the character of Indi- 
viduals," were spoken of, and he was directed to assist the 
operations of the British troops in the southern colonies, if 
they should come near Maryland. The letters were sent im- 

^ Journal and Correspondence of the Council of Safety, April 16, 1776, ff. 



36 The Provisional Government of Maryland. [512 

mediately to General Lee, commanding the troops in Virginia, 
and to the Virginia Council of Safety, whereupon the latter 
body forwarded them to the Baltimore committee of observa- 
tion, directing it to forward them to Congress. General Lee 
sent a private letter to Samuel Purviance, the chairman of the 
Baltimore committee, with whom he was on good terms, direct- 
ing him to send at once to Annapolis and seize the person and 
papers of the Governor. The letters reached Baltimore April 
14, and the committee not being then in session, Mr. Purvi- 
ance, on his own responsibility, sent an officer with a few men 
to Annapolis to seize the Governor secretly, and, at the same 
time, he forwarded the letters to Congress and wrote an un- 
signed private letter to President Hancock, in which he spoke 
of the Council of Safety and Convention as timorous and 
inactive, and as being afraid to execute the duties of their 
station. The letters were forwarded also to the Council of 
Safety, and upon their receipt the Council sent a delegation 
to the Governor, to show him a copy of the intercepted letters 
and to request a sight of his letter to Lord Dartmouth of 
August 27 last, and to ask his parole not to leave the Prov- 
ince until the meeting of the Convention. He replied that he 
had sent away the copy of the letter, with all his valuable 
papers, the autumn before, and could not remember the par- 
ticulars, but observed that they might be convinced there was 
nothing of a nature unfriendly to the peace of the Province in 
it, because the troops going to the southward had not been 
ordered to Maryland. "He asserted also upon his honour 
that he had not endeavoured to enflame the ministry by tra- 
ducing the characters of individuals.'^ On being asked to 
give his parole that he would not leave the Province till the 
meeting of the Convention, the Governor complained of being 
unjustly suspected; gave them his letters from William Eden, 
Esquire, his brother and one of the under secretaries of State, 
also one from Lord Dartmouth, and desired time until the 
next day to give his answer. At the set time, he refused to 
give his parole, holding it impossible so long as he should act 



513] The Provisional Government of Maryland. 37 

as Governor to become a prisoner at large in his Province. 
But, he told them that he had no intention of leaving, so long 
as his stay would tend to preserve the public tranquillity. 
This was taken as his parole in effect, and the committee 
thanked him for his resolution to remain, and expressed their 
hope that he would not regard their action as an insult or 
indignity. On the next day, the Council received an earnest 
request from Congress to seize both him and Ross and their 
papers, and to send such as related to the American Dispute 
to it without delay. This they considered as uncalled-for 
interference with their internal affairs and naturally resented. 
They replied that they had already taken such measures as 
were competent in their judgment to the occasion; that they 
were not convinced that the Governor had carried on any dan- 
gerous correspondence, and that they considered the seizure and 
imprisonment of the head of the civil government a measure 
of too much delicacy and magnitude to be adopted without 
calling and consulting the Convention.^ They were, more- 
over, greatly incensed at the anonymous letter of Purviance to 
President Hancock traducing them, and at the fact that the 
Congress would not let them have it to use against the writer. 
They "considered the authority of the whole Province trampled 
upon and insulted,'^ ^ and they called a Convention for May 7 
to take the matter into consideration. Meanwhile, being sus- 
picious of the plan concerted by General Lee and Samuel Pur- 
viance, they decided to investigate matters thoroughly, and 
accordingly summoned Purviance and other members of the 
Baltimore committee to appear before them, with all the papers 
and proceedings of the committee relative to the intercepted 
letters. On which occasion, they questioned them at length 
and in detail,^ and were disgusted with Purviance^s answers.^ 



^Journal and Correspondence of the Council of Safetv, April 18 and 19, 
1776. 
2 Ihid., April 19, 1776. 3 lUd., April 24, 1776. 

^Ihid., April 25, 1776. 



38 The Provisional Government of Maryland, [514 

He was obliged to enter into a recognizance for the sum of 
£500 for his appearance before the next Convention. 

On the meeting of that Convention/ on May 8, the Council 
of Safety laid all their proceedings relative to Purviance and 
the Eden aifair before it, and sought its approval of their 
actions. A committee inquired into the Purviance affair and 
found him guilty of the three charges : of usurping a power 
to direct the operations of the military force, at a time when 
the Council of Safety, to whom such power solely and properly 
belonged, was sitting, and might, without inconvenience, have 
been applied to ; of having given instructions to seize the Gov- 
ernor under color of his office as Chairman of the Baltimore 
committee, and as if at its request, whereas it was not con- 
sulted nor acquainted therewith ; and, finally, of having writ- 
ten and spoken derogatively of the Convention and Council 
of Safety.^ The Convention saw in his actions the influence 
of General Lee meddling in the affairs of the Province,^ and, 
while greatly resenting this outside interference, they resolved 
to let Purviance off with a severe reprimand,* in which their 
indignation at the real author of his actions was made plain. 

The Eden affair was considered in committee of the whole 
for several days. Finally, the course pursued by the Council 
of Safety was approved of, and no evidence was found of the 
Governor having held an unfriendly or injurious correspond- 
ence with the Ministry as regarded America. But, since it 
appeared from the intercepted letters that an expedition was 
to be sent to the southern colonies, which might have import- 
ant consequences to Maryland, and since the Governor had 
been directed to assist it, and must, if he should remain in the 
exercise of his power, execute the instructions of the Ministry, 
and, moreover, since the powers of government, in the absence 
of the Governor, would devolve on the President of his Coun- 



1 Proceedings of the Convention, pp. 125-162, May 8-May 25, 1776. 
« Ibid., May 10, 1776. » lUd., May 22, 1776. 

* Proceedings of the Convention, May 22, 1776. 



515] The Provisional Government of Maryland, 39 

cil, and thus the established form of government would not 
be dissolved or suspended by his departure, it was decided to 
signify to him that the public quiet and safety required his 
departure and that he should have full liberty to depart peace- 
ably with his effects.^ A complimentary address was drawn 
up and sent to him at the hands of a committee, expressing 
their appreciation of his conduct, their wishes for his return 
to the government of the Province at the conclusion of peace, 
aud their hope that he would, upon his arrival in England, 
represent their temper and principles with the same candor 
that he had ever shown in his attempts at reconciliation. 

Besides exercising the same executive, police, and judicial 
powers as those exercised by previous Conventions, this one 
took a step or two forward. It gave to the Council of Safety 
authority to subpoena witnesses when necessary, and to com- 
pel their attendance under penalty of fine and imprisonment. 
Owing to the marine warfare, which had begun under the 
direction of Congress and had grown to large proportions, they 
established a new court of admiralty. Because sundry officers 
appointed to maintain peace and order objected to take the 
oaths to the Proprietary Government, they resolved to dispense 
with them, and directed the officers to take simply the oaths 
of their office without fear of any penalties. Because the 
people who had taken up arms in defense of their rights and 
liberties could not, with sincerity and devotion, pray for the 
success of His Majesty's arms, they directed that every prayer 
for the King found in the Book of Common Prayer, except 
the second collect in the communion service,^ be omitted in all 
churches and chapels until the end of the unhappy differences.^ 
Finally, in reply to the resolution of Congress recommending 
them to form a permanent government representative of the 



1 Ibid., May 24, 1776. On this motion the vote stood 36 to 19. 

2 This is especially important as marking the Convention's exercise of 
authority over the Established Church. 

^ Proceedings of the Convention, May 25, 1776. 



40 The Provisional Government of Maryland. [516 

people, they said that they had the sole and exclusive right of 
regulating their internal affairs, that they would continue as 
heretofore to act with cheerfulness and alacrity in the common 
cause, and, if necessary, that they would enter into a further 
compact with the other colonies to do so, but that they did 
not think it necessary that every kind of authority under the 
Crown should be totally suppressed and all powers of govern- 
ment exerted under the authority of the people. In accord- 
ance with this sentiment, they renewed, to their newly reelected 
delegates to Congress, their instructions of the previous Jan- 
uary. 

On reviewing the events and results of the year about end- 
ing with this Convention, one is struck by the great advance 
made by the people in the acquisition of the powers of govern- 
ment and, at the same time, by the conservative use made of 
them. At the beginning of the period, the power of the 
people in Convention was just beginning to assert itself in a 
proposed commercial and armed opposition, and the Gover- 
nor's power was then little diminished. But that year saw the 
people's authority rise first to a position of equality and then 
to one of actual superiority, and finally drive the acknowledged 
head of the old regime out of the Province. A thoroughly 
competent Provisional Government of defense had grown up, 
a large military force had been raised and organized, the civil 
government had been encroached upon, and many of the bonds 
which bound the Province to the mother country had been 
loosened, but, withal, the progress had been cautious and only 
such as was necessary for the defense of the people's liberties. 
There was a great hesitation about taking the final step. As 
yet the people were not ready for it, and even the departure 
of the Governor ^ was looked upon as only temporary. But 
events were not long in bringing about the final severance of 
all political ties with England. To declare their colonial in- 

^ The President of the Council remained as his representative, and the 
Magistrates, Justices, and Sheriffs still held their commissions from him. 



517] The Provisional Government of Maryland. 41 

dependence and to set up a new State government was the last 
act in the drama of the Provisional Government. 



III. 

The people of Maryland were very slow, as has been seen, 
in making up their minds to declare their independence of 
Great Britain. The great amount of freedom previously exer- 
cised in the regulation of their internal affairs, and the happi- 
ness and prosperity enjoyed under the old regime, had endeared 
the English Constitution to them. The many and strong ties 
of blood, language, religion, and common interest, bound them 
closely to the mother country. The troubles and oppression 
which gave rise to the war bore down upon them less as concrete 
realities than as violations of their abstract rights. Finally, 
the fear of interference in the regulation of their internal affairs 
by the representative body of the United Colonies, made them 
loathe to break away from the protecting arm of the English 
Constitution and plunge into the uncertainties of Colonial Fed- 
eration while yet there remained the faintest hope of "a recon- 
ciliation on the firm ground of constitutional freedom." Con- 
sequently, Maryland held out to the end, and was one of the 
last of the colonies to declare its Independence. 

For a long time, however, some of the clearest minded of 
its citizens had seen the inevitableness of the step. We are 
told that, "sometime after the commencement of hostilities, 
and a long time before the Declaration of Independence," at 
a dinner at the house of Charles Carroll, Barrister, and in 
the presence of the Governor, Thomas Johnson declared 
that "the first Hessian soldier that puts his foot on the 
American soil will absolve me from all allegiance to Great 
Britain !" and that Samuel Chase, at the same time and place, 
exclaimed, " By God ! I am for declaring ourselves indepen- 
dent ! " ^ Though these expressions may have been used on 

^ Quoted in Scharf s Hist, of Md., II, 218, footnote. 



42 The Provisional Government of Maryland. [518 

the spur of the moment, there was back of them the more 
or less conscious conviction that Independence would be the 
inevitable outcome of the struggle. 

For some time to come the mass of the people did not share 
these views. The instructions to their Congressional delegates 
in January, 1776, were explicit in directing them not to join 
in any such movement, and they were repeated by the Con- 
vention in May. But, by that time, the logic of events was 
plainly pointing in the direction of Independence. On May 
15th, Virginia directed her delegates to declare in its favor in 
Congress. Massachusetts, Khode Island and North Carolina 
had taken more or less similar steps and, now, on June 7th, 
the matter was debated in Congress and, after a few days, was 
postponed for three weeks to give the deputies who had been 
directed to oppose it time to consult their colonies. The Mary- 
land delegates informed the Council of Safety of the fact, and 
asked them to call the Convention at the earliest possible 
moment, in order to get 'Hhe explicit sense of the Province 
on this point.'' They suggested also that the deputies collect 
the opinion of the people at large, in some way, before the 
meeting of the Convention. They themselves were plainly in 
favor of taking the decisive step. The Council had already 
called the Convention to meet on June 21st in order to con- 
sider the request of Congress to have the Maryland troops 
sent out of the Province,^ not feeling possessed of the proper 
authority to give the order themselves. In communicating 
this fact to the delegates in Congress, they said it was now too 
late to make the necessary inquiry before the meeting of the 
Convention ; and that, as they presumed, the first business of 
the Convention would be the regulation of the movement of 
the militia in accordance with the desire of Congress, the 
committees of observation could, if necessary, be directed to 
collect the sense of the people on Independence and report to 
the Convention. The Council was apparently not yet in favor 

^ Proceedings of the Council of Safety, June 10, 1776. 



519] The Provisional Government of Maryland. 43 

of it and was unwilling to take this responsibility upon them- 
selves, as they suggested that, " any mode their representatives 
may think proper to point out would be better relished by the 
people, than for us to put them into a violent ferment in a way 
that might not be approved of." This was apparently not 
very satisfactory to their delegates in Congress, who were 
anxious to have the Convention remove their previous instruc- 
tions and declare in favor of Independence. As soon as 
they could leave Congress, Matthew Tilghman, Thomas John- 
son and Samuel Chase came down from Philadelphia and 
endeavored to rouse the people to give the necessary instruc- 
tions to their deputies in the Convention. Under the pressure 
of events and the increasing sentiment in favor of the move- 
ment/ this was not very difficult. Several county meetings 
directed their deputies to rescind the former instructions and 
authorize the Congressional delegates to join with those of the 
other colonies in declaring Independence. 

When the Convention met, therefore, on June 21, many of 
the deputies were prepared for the action about to be taken. 
Still, the energetic action of the leaders was necessary to bring 
over many of the halting moderates. Their first work was 
to write to Congress, requesting the leave of as many of their 
delegates as could be spared, and to desire that the questions of 
Independence, Federation and Foreign Alliance be postponed 
until their return, which was promised to be as soon as possi- 
ble. Then, while awaiting their attendance, they gave their 
attention to minor matters. 

In response to the Charles county meeting, they resolved to 
determine all questions in future by a majority of members, 
and not, as heretofore, by a majority of counties ; they decided 
that the yeas and nays might be taken and entered whenever 
desired by any member, and they resolved to open their debates 



^ For the last six months, the leaders of the movement had been dissemi- 
nating their views in papers and letters. See Stone's Letter to Jenifer, 
Correspondence of the Council of Safety, Md. Archives, April 24, 1776. 



44 The Provisional Government of Maryland, [520 

and proceedings to the public except in cases where it should 
be otherwise ordered. All these measures marked a great 
advance in parliamentary procedure, making the Convention 
more sensitive to, and a better register of, popular opinion. 

They took another step in severing their relations to the 
Proprietary Government. The Governor had departed on 
June 24, and, on the next day, they ordered one of his last 
orders to be disobeyed. The Assembly had been prorogued, 
from time to time, since the Spring of 1774, and its legal 
existence had ended in the Autumn of 1775. To provide for 
a new Assembly, the Governor, shortly before his departure, 
had ordered writs to be issued in the Proprietor's name, pro- 
viding for the election of delegates. The Convention now 
ordered the writs to be disregarded and no elections to be held. 
This was really the death-knell to the Proprietary Govern- 
ment. The departure of the Governor had been regarded as 
only temporary, but now the orders for constituting the proper 
legislative Assembly, under the old regime were disregarded, 
and it was henceforth plain that the break with it must be 
complete and a new government constituted by the authority 
of the people. Henceforth, all that remained of the Pro- 
prietary rule was the subordinate officers of the civil and 
judicial administration, and these continued to exercise their 
functions several months longer. 

The Convention proceeded to consider the request of Con- 
gress to have them furnish troops to act with Pennsylvania 
and Delaware, and they agreed to furnish four battalions of 
militia, consisting in all of 3,405 men, under the command of 
a brigadier-general. 

Finally, on June 28, the much desired withdrawal of the 
previous instructions and restrictions upon their delegates in 
Congress was resolved upon, and they were now directed to 
join with the delegates from the other colonies in declaring 
*' the United Colonies free and independent States ; in forming 
such further compact and confederation between them ; in 
making foreign alliances, and in adopting such other measures 



521] The Provisional Government of Maryland, 45 

as shall be adjudged necessary for securing the liberties of 
America." They pledged the colony to hold itself bound by 
the resolutions of a raajority of the United Colonies, " pro- 
vided, the sole and exclusive right of regulating the internal 
government and police of this colony be reserved to the people 
thereof."^ This was an actual declaration of Independence, 
but it was followed on July 3 by the formal document,^ 
which stated the rights of the colonists, the infringements of 
the same, and their withdrawal of allegiance from the King of 
Great Britain, and declared their intention of entering into 
such further colonial union and foreign alliance as should be 
necessary, and their determination to form a new government 
to regulate the internal affairs and police of the colony.^ 

Independence having been declared, the next thing was to 
arrange for the formation of the new government. For this 
purpose, it was thought best to go to the people. Elections 
for deputies to a new convention, whose duty it should be to 
form the new government, were ordered to be held at certain 
specified places in each county, usually at the court-houses, on 
August 1. The qualifications for voters were fixed much 
as in former elections. " All freemen, above twenty-one years 
of age, being freeholders of not less than fifty acres of land, 
or having visible property in this colony to the value of £40 
sterling, at the least," were to vote for deputies in the several 
counties and in the town of Baltimore. For Annapolis, any 
freeman could vote who was twenty-one years old, and who 
owned a whole lot of land there or had a visible estate of £20 
sterling within the Province, or who had served five years in 
the city and was a housekeeper. In every case, the further 
requirements of one year's residence in the place where one 
should offer himself to vote, and freedom from the censure of 



1 Proceedings of the Convention, June 28, 1776. ^ jj^i^^ j^jy g^ 1775^ 

^It is noteworthy that, from now on, the word "colony" is generally 

used where " province " had been formerly employed, indicating the end 

of its peculiar provincial existence and its sense of union with the other 

colonies. 



46 The Provisional Government of Maryland, [522 

the authorities for breaches of the Continental Kesolves was 
necessary. Each county was to elect four delegates, Frederick 
being very large was allowed four from each of its districts. 
An innovation was now made in the representation of the 
people in that, for the first time, the town and city of Balti- 
more and Annapolis were classed by themselves, and each was 
allowed to return two delegates. The elections were to be free, 
and to be held in the usual viva voce manner. To this end, 
no one was to be allowed to go to the polls armed, no muster 
of the militia was to be made on the election day, nor were 
the soldiers to collect at the time and place of holding them, 
nor were any ten militia men to be allowed to vote successively 
if any one should object. Furthermore, no one holding a 
commission or office in the regular forces by land or by sea was 
to be eligible to become a representative, or to hold any place 
in the civil department, or to have a right to vote while hold- 
ing such commission or office. Every regulation was made on 
the old basis of representation, together with the innovations 
in the cases of Baltimore and Annapolis, to ensure the people 
a free voice in the election of delegates to frame a new govern- 
ment. The authority of the people was recognized as the basis 
of this new Power, and everything was done to have a full 
and free representation of the people in the new Convention. 
The old principle of free property qualification for suffirage was, 
however, still adhered to as a characteristic of the age. 

The civil officers whose commissions had issued from the 
Proprietary Governor were now exercising their functions only 
by sufferance, but, there being no convenient way as yet to 
replace them, the Convention authorized them, with the ex- 
ception of the customs officers, to continue in office until the 
next Convention should replace them by functionaries with 
commissions from the new State Government. The Proprie- 
tary officers were thus allowed to continue^ in the Colony even 
after the Declaration of Independence. 

^ Eddis and his colleague of tlie Loan Office continued to perform their 
duties until June 1, 1777. See Eddis' Letters, June 1, 1777. 



623] The Provisional Government of Maryland. 47 

Certain other matters of considerable importance were 
attended to by the Convention. The Statute of Treasons en- 
acted under Edward III, fixing the trial of traitors before a 
petit jury with the penalty of death and the confiscation of 
property, was adopted as law. It was decided that counter- 
feiters and conscious passers of such money should suffer death 
without benefit of clergy. It was resolved that private debts 
contracted between September 10, 1776, and July 10, 1777, 
might be paid in country produce and manufactures. Other 
matters, such as ordering the advance of money to aid home 
manufacturers in the production of goods, orders to the Coun- 
cil of Safety to contract for arms and ammunition, and judg- 
ment on cases of appeal on the breaches of the Continental 
Resolves, were also attended to. 

The action of the Convention on the resolutions of the Vir- 
ginia Convention relative to the Eden affair is, however, par- 
ticularly interesting as showing the determined opposition to 
all outside interference with their internal affairs. The Vir- 
ginia Convention had, on May 31, directed a letter to be sent 
to the President of the Maryland Convention expressing their 
deep concern because Governor Eden had not been seized and 
their reasons for refusing to give him a passage through their 
Colony or the Bay adjoining.^ The Maryland Convention 
now replied that the Virginia resolutions were hasty and be- 
trayed a disposition to meddle in their affairs, that they had 
never interfered in the affairs of Virginia and that they could 
not believe that the Virginia Convention (as it said) thought 
they had promoted the Governor's passage '^ to assist in their 
[Virginia's] destruction under a pretence of his retiring to 
England.'' They said, further, that they were the only proper 
judges of the propriety of the act, and that, if the Virginia 



^Virginia had insinuated that Eden's passage had been promoted "to 
assist in their destruction under a pretence of his retiring to England." It 
had appealed to the people of Maryland against the Convention, and it 
thus became necessary for the Convention to vindicate its proceedings. 



48 The Provisional Government of Maryland. [524 

Convention had had the evidence before them, they would not 
have been at a loss to know why the Maryland Convention 
acted as it did. The same spirit was manifest here as Jaad 
been evidenced before in the action upon the directions of 
Congress to form a new government. Maryland was deter- 
mined, at all costs, to resist all outside interference and to main- 
tain the sole and absolute right to regulate its internal affairs. 

Before adjourning on July 6, the Convention reappointed 
its delegates to Congress, replacing John Hall by Charles 
Carroll of Carrollton, and giving them as full and ample 
power to represent the Colony as any before had been given. 
They also reappointed the Council of Safety, with one excep- 
tion, with power to serve until the end of the next Convention. 
Then, fixing the date for the meeting of the new Convention 
for August 12, and directing the Council of Safety to call a 
meeting of the present one if necessary before August 1, they 
adjourned, providing for their dissolution on August 1. 

After declaring American Independence, Congress directed 
President Hancock to send a copy of the document to each of 
the Colonial Conventions, to the end that it might be by them 
proclaimed in the presence of the people. On July 11, the 
Council of Safety received the Declaration, together with a 
letter from the President, and it thereupon sent copies of them 
to the committee of each county requesting them to have the 
Declaration proclaimed in the manner they should judge most 
proper for the information of the people,^ which was accord- 
ingly done with proper solemnity and festivity. On the meet- 
ing of the new Convention, the Council laid the document 
before that body, and, on this occasion, the sanction of the 
representative and authoritative body of the Colony was added 
to the previous approval of the people.^ 

When the Convention assembled on August 14, it was 
found that in several instances the regulations of the last Con- 



^ Correspondence of the Council of Safety, July 16, 1776. 
^ Proceedings of the Convention, August 14, 1776. 



525] The Provisional Government of Maryland, 49 

vention fixing the qualificatioDS of voters and the places for 
voting had been disregarded, and some irregularly elected 
deputies had been returned. The regulation excluding all 
those actually in the military service of the Colony from voting 
or becoming candidates for election, seems to have been the 
chief cause of trouble. In Queen Anne, Prince George, 
Worcester, and the lower districts of Frederick county, depu- 
ties had been appointed by the aid of the vote of the soldiery, 
and in Kent county, owing to the trouble growing out of the 
enforcement of this regulation, no election had been held.^ 
In all these cases, the Convention upheld the regulations of 
its predecessor, declared all such elections null and void, and 
ordered new ones on the old basis.^ 

Before entering upon the all-important work before them, 
certain rules ^ regulating procedure and debate were agreed 
upon, which, from their simple, natural character, make one 
wonder why they had not been previously adopted. Con- 
sistently following the endeavor of previous Conventions, they 
were determined to keep the military from influencing the 
civil department of government, which they desired to be 
founded on the calm, sober judgment of the people, and they 
resolved that any member who should accept a commission in 
the flying camp, should vacate his seat in the house.^ 

They soon set themselves to their chief task, the formation 
of a new government. On August 17, they appointed a com- 
mittee^ of eminent men "to prepare a declaration and charter 



^In Charles county, though held partly at one place and partly at an- 
other, yet, because of the unanimous consent of the voters, they were 
allowed to stand. 

* The personnel of the Convention was much changed. Out of a total of 
76 members, the late elections had returned fully two-thirds of that num- 
ber as new men. Council of Safety Correspondence, Letter to Md. Deputies, 
July 9j 1776. Proceedings of the Convention, Aug. 15, 1776. 

^Proceedings of the Convention, Aug. 15, 1776. ^Ihid.y Aug. 16, 1776. 

' It consisted of Matthew Tilghman, Charles Carroll, Barrister, William 
Paca, Charles Carroll of Carrollton, George Plater, Samuel Chase, Kobert 
Goldsborough. Thomas Johnson and E.. T. Hooe were added on August 30. 
4 



60 The Provisional Government of Maryland. [526 

of rights, and a plan of government agreeable to such rights 
as will best maintain peace and good order, and most effect- 
ually secure happiness and liberty to the people of this State." 
Ten days later, the committee reported a Declaration and 
Charter of Rights, and on September 10 presented a Constitu- 
tion and Form of Government. These were read and laid on 
the table without discussion or consideration, owing to the 
necessary attendance of their delegates in Congress. On Sep- 
tember 17, they ordered these documents to be printed for the 
consideration of the people at large, and twelve copies were 
directed to be sent to each county.^ The Convention then 
adjourned for two weeks, to give the people time to acquaint 
themselves with the proposed instruments of the new State 
Government, and to give their delegates in Congress an oppor- 
tunity to attend the Convention. After reassembling they 
took up the discussion of these documents, discussing them 
first in committee of the whole, then reporting them to the 
house, rediscussing them, paragraph by paragraph, and finally 
they were adopted, the Declaration of Rights on November 
3, and the Constitution on November 8. 

The time spent in deliberating on them was very short, in 
comparison with their importance. The committee which 
drew them up produced the Declaration in ten days, and the 
Constitution in about ten days more. Then they were laid on 
the table for a whole month, and after being taken up again, 
a month was given to discussing and agreeing to them, but of 
this time much was given to other business. Yet they both 
were able and epoch-making documents.^ 

The Declaration of Rights^ asserted, first of all, the true 
origin and end of government as coming from the people and 



^ Proceedings of the Convention, Sept. 17, 1776. 

^ It is interesting to note that no provision was made for a ratification of 
them by the people. The people were apparently regarded as sufficiently 
present in the Convention, and when adopted by it, these instruments were 
binding upon all. 

^ See Proceedings of the Convention, Nov. 3, 1776. 



527] The Provisional Government of Maryland, 51 

existing solely for their good. It next demanded for the 
people of Maryland the sole and exclusive right of regulating 
their internal government and police. For the freedom and 
protection of the citizen, it claimed the benefits of the Common 
Law of England, and repeated some of the provisions of the 
Great Charter providing for free, speedy and just trials by 
jury, and declaiming against ex post facto and attainder laws. 
The now somewhat famous aphorism that " public office is a 
public trust,'' was clearly enunciated in it, and the violation 
of it was made a justification for the overthrow of the old 
government. The principle of the three-fold division of the 
powers of government, then so enthusiastically believed in, 
was strongly emphasized, and made a corner-stone of the Con- 
stitution. Freedom of worship, freedom of the press, the 
evils of monopolies, of hereditary honors and titles of nobility, 
the elevation of the judiciary above the clamor of frequent 
and popular elections, the subjection of the military to the 
civil power, were some of the remaining assertions of this 
Declaration. 

The Constitution ^ introduced several interesting innova- 
tions. Under t